Attorney General v Paul K. Ssemogerere and Anor (Constitutional Appeal No.3 of 2004)
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IN THE SUPREME COURT OF UGANDA AT MENGO
CORAM: ODOKI CJ. ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA JJ.S.C & OGOOLA AG.J.S.C..
CONSTITUTIONAL APPEAL NO. 3 OF 2004
BETWEEN
ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
AND
1. PAUL K. SSEMOGERERE 2. ZACHARYOLUM::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS
(Appeal from decision of the Constitutional Court (Okello, Engwau, Mpagi-Bahigeine, Twinomujuni, and Kitumba JJ.A) at Kampala dated 25th June 2004, in Constitutional
Petition No.3 of 2000.)
REASONS OF MULENGA J.S.C. FOR THE COURT'S JUDGMENT.
These are my detailed reasons for concurring in the judgment of this Court dated 2nd September 2004, in an appeal against the decision of the Constitutional Court declaring the Referendum (Political Systems) Act 2000, ("the impugned Act"), null and void and making other consequential findings and declarations. In the judgment we allowed the appeal in part, and reserved the detailed reasons to be given later. I have since had opportunity to read in draft the detailed reasons of my Lord the learned Chief Justice in which he ably and adequately sets out the background to the appeal as well as the submissions on the grounds of appeal by learned counsel on both sides. I will only repeat what I deem necessary for emphasis or clarity of my reasons.
The impugned Act was enacted by Parliament on 7th June 2000. It made provision for the holding of a referendum under Article 271 of the Constitution. On 22nd June, the respondents petitioned the Constitutional Court to strike down the impugned Act as null and void on several grounds. Before the petition came up for hearing, the referendum was held on 29th June 2000, and subsequently the results were published in the Uganda Gazette of 28th July 2000. On 17th October 2000, the Constitutional Court stayed the hearing of the petition sine die, pending disposal of Constitutional Petition No.7 of 2000. I must pause here to observe that this was, to say the least, an unfortunate decision, because it overlooked the imperative in Article 137(7) that requires that court to hear and determine constitutional causes expeditiously, and as it turned out, it led to inordinate delay. In my view the better course would have been to consolidate the two petitions, as I assume that the stay was because both petitions raised the same or similar issues. Be that as it may, the petition was eventually heard on 28th April 2004, and judgment allowing the petition was delivered on 25th June 2004, four years after institution of the suit. The appeal to this Court was on 14 grounds of appeal, attacking the declarations and diverse holdings in the judgments of the five Justices of the Constitutional Court.
At the hearing of the appeal, the Attorney General, Hon. Amama Mbabazi, appeared in person, assisted by Mr. Joseph Matsiko, Principal State Attorney. I shall refer to them interchangeably as "counsel for the appellant". Mr. Godfrey Lule, assisted by Mr. Joseph Balikuddembe appeared for the respondents. Counsel for the appellant abandoned grounds 1 and 13 did not specifically address ground
12 because apparently it was covered in arguments on the other grounds. The remaining 11 grounds were argued in batches as follows -
o grounds 2 and 3, on justiciability of the impugned Act, together;
o grounds 5 and 6, on contravention of Article 271, together;
o grounds 9, 10 and 11 on procedural breaches in passing the Act, together;
o grounds 4, 7 and 8, on validity of the referendum, together; and
o ground 14, on doctrine of prospective overruling, separately. I will discuss my reasons in the same pattern.
Justiciability of the impugned Act:
The first batch, comprising grounds 2 and 3, was centred on the proposition that the impugned Act, being an expired law, was incapable of contravening, or being inconsistent with the Constitution, and therefore could not be challenged under Article 137. The grounds read as follows -
"(2) The learned Judges of the Constitutional Court erred in law and in fact in holding that the expired Referendum (Political Systems) Act, 2000 can be challenged as being unconstitutional;
(3) The learned Judges of the Constitutional Court erred in law and in fact in hearing and deciding on a petition challenging a non-existing dispute on the basis of a non-existing law;"
Learned counsel for the appellant submitted that the Constitutional Court ought to have considered the status of the impugned Act as at the time when the petition was decided because that was the material time to consider if the relief sought could be granted, namely if there was in existence an Act to strike down for contradicting the Constitution. According to him, when the petition was heard -
• the Act was spent, and already expunged from the revised Laws of Uganda;
• the Act being, non-existent, could not infringe the Constitution; and was not available to be struck down;
• the dispute between the parties had ceased on expiry of the Act; and so there was no subject matter upon which the court could adjudicate;
• the Act was deemed repealed under section 13 (3) of the Interpretation Act, and as such, it was dormant and so incapable of infringing the Constitution.
In reply, learned counsel for the respondents submitted that -
• the impugned Act was challenged when it was still in force, whereupon the Constitutional Court was seized with jurisdiction to determine its validity;
• the proceedings so initiated were preserved subsequent to the expiry of the Act by virtue of section 13(2)(e) and (3) of the Interpretation Act;
• the expiry of the Act neither affected the cause of action, nor the court's jurisdiction to conclude those proceedings.
• to uphold the contention that an expired Act is not challengeable would render acts done on authority of such Act ipso facto unchallengeable even if the acts were unconstitutional.
I respectfully agree with the reasoned observations made by my learned brother Tsekooko JSC, that the date when the impugned Act expired was neither fixed nor ascertained. However, it was common ground that the impugned Act was in force when the respondents filed the petition in court, and therefore challengeable under Article 137; and that by the time it came up for hearing, about four years later, the Act had expired and was no longer in force. The bone of contention was whether that expiry had the effect of causing the petition to lapse or of rendering the Act non justiciable. For the following reasons I was satisfied that the expiry of the Act had neither effect. First, while the Act was in force, it was capable of contravening or being inconsistent with the Constitution. The dictum in Attorney General vs. Dr. James Rwanyarare & Others, Constitutional Appeal No.2/03 (SC) (unreported), on which learned counsel for the appellant heavily relied, as authority for the proposition that a dormant Act cannot breach the Constitution, was inapplicable to the instant case. In Dr. Rwanyarare's case (supra), the petition challenging an Act of Parliament was filed in court nearly two months after the enactment of the Act. The Constitutional Court overruled an objection that the petition was filed outside the prescribed time of thirty days from the alleged breach of the Constitution. On appeal to this Court, the substantial question to determine was when the prescribed time started running. This led to consideration of the time when an Act of Parliament becomes effective and therefore capable of contravening the Constitution. The Court noted the provisions of section 14(1) and (2) of the Acts of Parliament Act, (Cap.2) concerning commencement of an Act of Parliament, and then concluded -
"Clearly according to those provisions an Act of Parliament... becomes a law when it is assented to by the President. However, we understand subsection (2) to imply that a law remains dormant until the day upon which it becomes enforceable and that day is the date of commencement.. Needless to say a dormant law cannot breach the constitution because it is ineffective." (Emphasis is added). What was under contemplation in the dictum, was a law that is dormant before it becomes effective, not one that becomes dormant after being effective. In the instant case, the impugned Act became effective upon enactment. The respondents challenged it for its effectiveness while it was in force, not for its dormancy after it expired. Secondly, in private as well as public interest litigation, the competence of a suit is determined by the disclosure of a cause of action in the applicable pleadings as at the date of initiating the suit, not at the date of granting relief. The respondents in the instant case disclosed a cause of action in their petition by pleading that the impugned Act was unconstitutional on diverse grounds and praying for a declaration to that effect. The petition was therefore competent and upon the appellant contesting it, the Constitutional Court was seized of a live and existing dispute. There was nothing (in law or in fact) that occurred thereafter to extinguish either the cause of action or the dispute. Thirdly, notwithstanding that pursuant to s.13 (3) of the Interpretation Act an expired Act is construed as a repealed Act, the effect of expiry, as that of a repeal, is not to wipe out its impact as if it never existed. To construe an expired Act as a repealed statute is no more than to construe it as inoperative from the time of its expiry. Lastly, I agreed with the contention by counsel for the respondents that to hold that an expired Act is unchallengeable would lead to ridiculous results rendering unconstitutional acts done on authority of an expired Act ipso facto unchallengeable. Accordingly I agreed that the holding that the impugned Act was challengeable under Article 137 was not an error and that grounds 2 and 3 were without merit.
Contravention of Article 271 (2).
The second batch of the grounds of appeal complained thus -
"(5) The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 was passed in contravention of Article 271(2) of the Constitution.
(6) The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 amended Article 271(2) of the Constitution."
In the judgment of this Court, we held that these two grounds must fail. I am constrained to add that ground 6 was a misconception because the Constitutional Court did not hold that the impugned Act amended the Constitution. On the contrary, in their respective judgments the learned Justices were unanimous in the view, which they expressed differently, that notwithstanding its section 2, the impugned Act did not have retrospective effect because Article 271 was not amended. The point is clearest in the words of Twinomujuni J.A. who said -
"Section 2 of the Act had another problem. To the extent that it purported to abridge the period allowed by article 271 ...from 12 months to only three weeks, it would have the effect of varying the meaning of that article. That would tantamount to amending it by implication or infection within the meaning of article 258. To do that Parliament had to comply with chapter 18 of the constitution ... It is common knowledge that that was not done."
That leaves me to discuss my reason for upholding the Constitutional Court's conclusion that the impugned Act did not conform to Article 271. The appellant's learned counsel focussed his attack on the finding by the Constitutional Court that the impugned Act had purported to abridge the period for canvassing to three weeks contrary to Article 271(2), which guaranteed a period of one year before the referendum. He submitted that the respondents did not discharge the burden to prove that there was no freedom to canvass, and asserted that both in law and in fact,everyone interested was free to canvass and did canvass during the period stipulated in Article 271(2). With due respect, I think that the learned counsel mixed up the issues. In my view, the bulk of his submissions under these grounds was more related to the legitimacy of the referendum. I will revert to it and briefly review his arguments when I discuss grounds 4, 7 and 8. The relevant question to consider under ground 5, which at the trial was framed as issue No. 3, is whether the passing of the impugned Act contravened or was inconsistent with Article 271(2). In the judgment of this Court, we answered the question in the affirmative. In order to clarify that answer, it is important to recall the context in which the impugned Act was enacted.
In Article 69, the Constitution declares the people's right, through elections or referenda, to choose and adopt a political system from among the movement or the multi-party political systems or any other democratic political system. In Chapter 19, it sets out transitional provisions to apply before the people adopt a political system of their choice. For the purposes of this appeal, the pertinent provisions are in Articles 263, 269 and 271. The essence of Article 263 was to provide for "the Government of the National Resistance Movement", (NRM), which was in office before the promulgation of the Constitution, to continue in office until the election of a new government within nine months after the said promulgation. Article 269 authorised the continued activity of political organisations but imposed a number of restrictions, until such time as Parliament enacts a law to regulate their activities. Among other things, it prohibited political parties from holding public rallies or "carrying on any activities that may interfere with the movement political system". Then Article 271 ordained that the first presidential, parliamentary and local government elections would be held under the movement political system. It prescribed the time for the people's first exercise of the right to choose and adopt a political system of their choice through a referendum and the time for canvassing. The full text of that Article reads thus -
"277. (1) Notwithstanding the provisions of article 69 of this Constitution, the first presidential, parliamentary, local government and other
public elections after the promulgation of this Constitution shall be held under the movement political system.
(2) Two years before the expiry of the term of the first Parliament elected under this Constitution, any person shall be free to canvass for public support for a political system of his or her choice for purposes of a referendum.
(3) During the last month of the fourth year of the term of
Parliament referred to in clause (2) of this article, a referendum shall be held to determine the political system the people of Uganda wish to adopt.
(4) Parliament shall enact laws to give effect to the provisions of this article."
The following facts were not in dispute here or in the court below -
• that the term of the first Parliament referred to in Article 271 commenced on 2nd July 1996 and expired on 1st July 2001;
• that freedom to canvass for purposes of the referendum referred to in clause (2) of Article 271, had to be in place two years before 1st July 2001; and
• that the referendum referred to in clause (3) of Article 271, in which, the people of Uganda were, for the first time to select a political system of their choice, was to take place during the month of June 2000, that being the last month of the fourth year of the first Parliament.
Under clause (4) of Article 271, the Constitution commanded Parliament to enact laws for the purpose of giving effect to provisions of that Article. The two obvious provisions, to which the envisaged laws were to give effect, were those concerning the holding of the referendum and the freedom to canvass. Evidently, the special provision for freedom to canvass for support in the referendum was necessitated by and intended to override the restrictions imposed, under Article 269, on political canvassing while the NRM was in power. The intention must have been to ensure that, notwithstanding those restrictions, an ad hoc law giving effect to that freedom throughout the prescribed period would be in place. In order to comply with that command therefore, Parliament had to enact the law before the commencement of the prescribed period. The first attempt was the enactment of the Referendum and Other Provisions Act 1999 ("Act 2 of 1999") on 2nd July 1999, which however was subsequently annulled.
Parliament enacted the impugned Act, as the law to give effect to the provisions of Art. 271. This is apparent from the provisions of the Act and more specifically from its long title which spelt out that it was enacted "to make provision for the holding of the referendum required to be held under article 271". In addition, presumably for emphasis or avoidance of doubt, it was provided in section 27 of the impugned Act, that the referendum "shall be held" in accordance with the Act "notwithstanding the provisions of any other law." Sections 12 and 21 related to the freedom to canvass. In particular, the latter section provided -
"21. On and after the 2nd day of July, 1999 any person shall be free to canvass for public support for a political system of his or her choice for the purpose of the referendum." The impugned Act, including that section, was enacted nearly a year after it was due. Parliament failed to comply with the constitutional command in Article 271 Notwithstanding the notional backdating, however, it could not give effect to the constitutional provision on the freedom to canvass, during and throughout the prescribed period of one year, commencing on 2nd July 1999, which had passed.
The law, therefore, was inconsistent with the letter and spirit of the provision in Article 271, and was therefore, null and void. Accordingly, grounds 5 and 6 failed.
Procedural breaches in passing the impugned Act
In grounds 9, 10 and 11 the appellant attacked the findings on the procedure adopted in processing the bill for enactment of the impugned Act. I do not wish to add anything to the reasons for our decisions on these grounds as set out in our judgment and detailed by the learned Chief Justice. I would only emphasise that the specialised functions of a Standing Committee are very different from the regular function of the Committee of the Whole House at the "committee stage". There was no merit in ground 9 but grounds 10 and 11 had to succeed.
Validity of the Referendum
The complaints in grounds 4, 7 and 8 related to the Constitutional Court's findings in respect of the referendum held on 29th June 2000. The grounds read thus -
"4. The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum which was held on 29th June, 2000 was invalid
7. The learned Judges of the Constitutional Court erred in law and in fact in holding that the 2000 Referendum on choice of Political Systems was held in contravention of Article 69 of the Constitution
8. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the people of Uganda in a referendum held on 29th June 2000 never adopted a political system under Article 69 of the Constitution."
These grounds arise from declarations set out in the judgments of Okello and Twinomujuni JJ.A respectively. In the former the second declaration read thus -"(b) Holding the referendum under the Referendum (Political Systems) Act 2000 before passing a law under Article 269 to set free Political Organisations contravened Article 69"; and in the latter the second and third declarations read thus -
"(2) The referendum which was held under the Act on 29th June 2000 was invalid.
(3) No Political System under Article 69 was put in place."
As I indicated earlier, the bulk of the submissions by counsel for the appellant on ground 5, related to the legitimacy of the referendum and I find it appropriate to consider that part along with his specific submissions on grounds 4, 7 and 8, which were premised on the contention that the respondents did not challenge the referendum. He submitted that in their petition, the respondents challenged the validity of the impugned Act only and prayed for a declaration that it was null and void, but did not ask the court to determine the constitutionality of the referendum, or whether the people of Uganda had made any choice of a political system in that referendum. He stressed that after the referendum was held on 29th June 2000, the respondents could have amended their pleadings to pray for the annulment but did not do so. He maintained that it is an error of law for a court to grant a relief that is not founded on pleadings or framed issues. In support of that proposition counsel cited rule 13 (1) of Legal Notice No.4 of 1996; O.6 r.1 and 0.18 r.4 of the Civil Procedure Rules; Chitaley and Rao A.I.R. Commentaries 6th Ed. p.2697 and Capt. Harry Gandy vs. Casper Air Charters (1956) 23 EACA 139. On the validity of the referendum, the thrust of his submissions was that the referendum did not contravene Article 69 because both as a matter of law and a matter of fact, the referendum was free and fair. He drew the Court's attention to Act No.2 of 1999, which expressly provided in s.13 that any person or group of persons was free to canvass for support of a side in a referendum under Article 271 for choosing a political system. He argued that although subsequently the Constitutional Court annulled it, Act No.2 of 1999 was in force during the year preceding the referendum and at the time the referendum was held, and that the people had in fact freely canvassed under it as was held by the Constitutional Court to that effect in Dr. James Rwanyarare & Another vs. Attorney General, Constitutional Petition No.5 of 1999. He also pointed out that the impugned Act had validated all things done in good faith under Act No.2 of 1999.
In reply, counsel for the respondents submitted first that the invalidity of the referendum was an issue canvassed at the trial and properly determined by the Constitutional Court. The issue was pleaded in paragraph 1(e) of the petition and at the trial it was framed as the fourth of the agreed issues for determination by the court. Secondly, learned counsel submitted that the annulled Act No.2 of 1999, could not cure the contravention of Article 69, as it was null and void ab initio. The regulations and all other things done under it were similarly void and could not be saved by the impugned Act, which itself was unconstitutional.
In our judgment, we answered two questions that arose out of these submissions. First, we held that the Constitutional Court did not err in considering the validity of the referendum because the question was properly before it albeit indirectly. Secondly, we held that the Constitutional Court erred in making the declaration that the referendum was invalid when the ground for so holding was not proved.
We also observed that the circumstances warranted the exercise of the court's discretion to decline granting the declaration. I will now elaborate on my reasons for those holdings in that order.
It is a cardinal principle in our judicial process, that in adjudicating a suit the trial court must base its decision and orders on the pleadings and the issues contested before it. Founding a court decision or relief on unpleaded matter or on an issue not properly placed before it for determination is an error of law. Hence the rules of procedure require that at the commencement of the trial, the court should frame issues for its determination, primarily from the pleadings. Framing of issues highlights the material questions in controversy and thus provides guides as to what questions of fact and law each party should focus on in proving its case. The Civil Procedure Rules, which apply to proceedings in the Constitutional Court by virtue of Legal Notice No.4 of 1996, provide in 0.13 r.l (5) -
"At the hearing of the suit the court shall, after reading the pleadings, if any, and after such examination of the parties or their advocates as may appear necessary, ascertain upon what material proposition of law or fact the parties are at varience, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend".
And 0.18 r.4 provides that a judgment shall contain a precise statement of the case, the points for determination, the decision, and the reason for such decision.
The decision in Captain Harry Gandy vs. Caspar Air Charters Ltd. (supra), on which the appellant relied, emphasises the principle, but its circumstances are clearly distinguishable from those of the instant case. In that case, the appellant sued the respondent for wrongful termination of his employment without notice on 24th August 1953. The respondent denied the allegation and counterclaimed that the appellant had verbally terminated his own employment on 23rd August 1953. The trial judge found for the respondent on the counterclaim but on a ground that was never pleaded or canvassed at the trial, namely that the appellant had terminated the contract of employment when, on 1st September 1953, he accepted alternative employment. On appeal to the Court of Appeal for Eastern Africa, Sinclair V.P. said at p.140 -
"As a rule relief not founded on the pleadings will not be given. In Eshenchunder Singh vs. Shamachurn Bhutto, 20 E.R. 3,... an appeal from Calcutta High Court, Lord Westbury described it as 'an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made"...As to the English practice Scrutton, L.J. said in Blay vs. Pollard and Morris (1930) 1 K.B. 682:-
'Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment. In the present case the issue on which the Judge decided was raised by himself without amending the pleadings, and in my opinion he was not entitled to take such a course.' Whether the appellant broke the contract by taking alternative employment was never an issue on the pleadings or at the trial and it was neither involved in nor consistent with the company's case. It was an entirely different kind of breach from that relied on by the company which was that the appellant verbally terminated the contract without notice on 23rd August...I am of the opinion that the learned Judge was wrong in founding his judgment on that issue particularly when it was contrary to the submissions of both parties." (Emphasis is added)
In his judgment in the instant case, Okello JA held, rightly in my view, that the validity of the referendum was questioned in the petition where it was asserted in paragraph 1(e) that the absence of law permitting political party activity prejudiced the right to a free and fair referendum in contravention of Article 69. Because the assertion was denied, one of the five issues counsel for both parties agreed to frame for determination was -
"4. Whether or not the absence of a law regulating the activities of Political Organisations as provided in Article 269 of the Constitution contravened Article 69 by perpetuating a political environment under which the people of Uganda could not make a free and fair choice of the political system as to how they should be governed." Surprisingly, the Solicitor General, who agreed to the inclusion of this issue, contended in the final submissions that the issue was misconceived and irrelevant. Clearly, that submission was untenable and was rightly rejected. The issue was properly before the court, and in determining it, the court had to consider if the referendum contravened Article 69. In this appeal, counsel for the appellant virtually reiterated the same untenable arguments and we similarly rejected them, hence our first answer. I now turn to my reasons for the second answer.
Article 69 provides -
"(1) The people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda."
Article 73 provides for the making of law to regulate political organisations. Article 269, provides that until Parliament enacts that law, political organisations are restrained from -
> opening and operating branch offices; > holding delegates conferences;
> holding public rallies; sponsoring or offering a platform to or in any way campaign for or against a candidate for any public election;
> carrying on any activities that may interfere with the movement political system for the time being in force.
Up to the time the referendum was held, Parliament had not enacted any law regulating activities of political organisations. The said restraints imposed under Article 269 were still in force. Consequently, a political party was not free to canvass in the referendum for support of a political system of its choice. That scenario provided the basis on which the respondents, in their petition, postulated that the holding of the referendum would contravene Article 69. In addition, they adduced supplementary affidavit evidence by the second respondent that the police, on diverse occasions in several districts prevented members of the Democratic Party from holding peaceful public meetings. I am constrained to observe, however, that in dealing with the issue, both the respondents and the Constitutional Court substantially placed most reliance on the postulate, and hardly any on evidence of fact as to whether or not the referendum was free and fair. As we said in the judgment of this Court, the postulate cannot be faulted. Where, in a democratic setting, the electorate are asked to choose between two competing concepts, the respective proponents of each concept must be given equal opportunity to canvass for support. In the referendum in the instant case, the competing concepts were the movement political system and the multiparty political system. It is a notorious fact that the major competing proponents of the concepts were the NRM for the former, and the various political parties for the latter. The minimum expectation for rendering the referendum free and fair in a democratic sense therefore, was that political parties would be free to canvass in their organised capacities, the same way the NRM was free to canvass in its very highly organised capacity.
Counsel for the appellant conceded that political parties were not free to canvass but he went to great length to argue that it was sufficient that individual members of the political parties were free to canvass for the multiparty political system. I appreciate that in this argument learned counsel took advantage of the incoherent provisions of the Constitution, which are difficult to harmonise. On the one hand, the Constitution protects the freedoms of assembly and association, expressly stated to include the freedom to form and join political organisations (Article 29); it guarantees the right to form political parties and any other political organisations (Article 72) and it prohibits the establishment of one-party state (Article 75). On the other hand, however, the combined effect of Articles 73, 269 and 271(1), is that while the movement system is in place, political parties are barred from carrying out activities that are essential for their functioning and existence, including the activity of public canvassing for support. The incoherence I refer to is that the same Constitution promises to guarantee, protect and uphold the said rights and freedoms while at the same time it withholds the privilege and enjoyment of those rights and freedoms. Even if it were accepted that the law permitted everyone to, and in fact every interested individual did canvass, as asserted by counsel for the appellant, it is difficult to perceive as "fair", a referendum where the major competing proponents do not have equal opportunity to canvass for support. For that reason I would not fault the postulate that a referendum held under the legal regime prevailing at the material time would not be free and fair.
However, that notwithstanding, it is a rule of constitutional interpretation that the Constitution must be read as one whole. The court must endeavour to harmonise its provisions and not hold one to override another. In that regard, and difficult as it may be, I am obliged to construe the incoherent provisions as envisaging that "free and fair" elections and referenda may be held even where political parties are not free to participate. In those circumstances, the Constitutional Court ought not to have resolved the issue solely on basis of the postulate. By the time the petition came up for hearing, the conduct of the referendum was no longer a matter for speculation. The referendum had already been held and its conduct could be inquired into to ascertain whether or not, it had actually been free and fair. As I have just observed, since the Constitution appears to envisage free and fair elections and referenda even under the movement political system, the Constitutional Court ought to have considered the question whether despite the absence of law permitting political parties to canvass, the conduct of the referendum was free and fair. I hasten to add that the burden was on the respondents who sought nullification of the referendum, to prove that it was not free and fair.
The only semblance of factual evidence on this question is from Hon. Zachary Olum, who averred in his supplementary affidavit dated 16 October 2000 -
"5. That I know as a leader and member of the Democratic Party that on a number of occasions the police acting on orders from Government has prevented me and other fellow members of the Democratic Party from holding peaceful public meetings in places like Tororo, Mbarara, Nkozi and Gulu - thus denying us the right and freedom of association and assembly."
Although the appellant did not adduce any evidence in rebuttal, I am unable to say that the respondents seriously put this allegation forward as proof that the referendum was not free and fair. Wittingly or unwittingly, it lacks essential particulars and detail to link it to the referendum. For example, the deponent did not disclose the period and circumstances in which the police prevented him and his colleagues from holding the public meetings, nor did he state the objectives of the thwarted meetings. He only averred that they were thereby denied the right of association and assembly, but nothing about being denied the freedom to canvass. The court cannot assume that the meetings were intended for canvassing for support in the referendum. Clearly, the allegation is not a sufficient basis for a judicial finding that the referendum was not free and fair. In the premises, there was no adequate proof that the referendum contravened Article 69. Significantly, both at the trial and in this appeal, the respondents did not attack the referendum for any other constitutional infringement or for being something done on authority of a void statute. The Constitutional Court also did not find that the referendum infringed the Constitution for any other reason than the unproved contravention of Article 69.
Admittedly on the face of it, the referendum was conducted under the impugned Act, which was void. However, the authority to hold it and consequently its legitimacy lay in the constitutional dictates of Articles 69 and 271, which read -"69. (1) The people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda."
"271.
(3) During the last month of the fourth year of the term of Parliament referred to in clause (2) of this article, a
Referendum shall be held to determine the political System the people of Uganda wish to adopt."
The holding of the referendum complied with those dictates notwithstanding the failure of Parliament to enact a valid law under Article 271(4) 'to give effect to the provisions of (the) article.' In my view, the absence of a valid law enacted under Article 271(4) did not vitiate the legitimacy of the referendum held in compliance with Article 271(3). Accordingly, I concurred in this Court's finding that the Constitutional Court erred in holding that the referendum was void for contravening Article 69. Grounds 4, 7 and 8 had to succeed.
In addition, as we observed in the judgment of this Court, the Constitutional Court ought to have taken the circumstances and justice of the case into account before granting the declaration nullifying the referendum. Needless to say, this observation is not part of the ratio decidendi. It was made, and I reiterate it here to provide guidance on a declaratory judgment or a judicial declaration as a remedy. It is apparent from their judgments that the learned Justices of the Constitutional Court took the declarations they made as automatic consequences of the finding (or assumption) they had arrived at, that the referendum was not free and fair, and therefore contravened Article 69. A declaratory judgment is not a mere pronouncement. It is sought and is given, as a binding legal remedy or relief from a wrong. It is a court order like an order of injunction, certiorari, mandamus, specific performance etc. Except in particular circumstances where the appropriate remedy is fixed by statute, the court has inherent discretion to determine what remedy is appropriate in the case before it. When considering an application for such remedy, all considerations pertaining to the justice of the case fall within the purview of the court. The court has to weigh all the pertinent circumstances in order to determine if it is just to grant the remedy. This is true whether the remedy is sought for a wrong against a private right or a wrong of a public nature such as contravention of the Constitution. The position under Uganda law is not different from that under the English law, which is summarised in Halsbury's Laws of England, 4th Ed. Reissue Vol. 1(1) at p. 272 Para. 165 thus -
"165. Remedy is discretionary. In both judicial review proceedings and in an ordinary action, the power to make a declaratory judgment is discretionary. The discretion should be exercised with due care and caution, and judicially with regard to all the circumstances of the case, and except in special circumstances should not be exercised unless all parties interested are before the court. It will not be exercised where the relief claimed would be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction." (Emphasis is added)
My learned brother Kanyeihamba JSC has strongly expressed the view that in constitutional disputes the court's role should be confined to precise and objective interpretation of constitutional provisions and empirical declarations of law, and that the court cannot, on basis of extraneous issues, exercise discretionary powers to decline to grant a remedy sought by a petitioner. I respectfully agree that the court must be precise and pronounce its interpretation of the constitutional provisions referred to it objectively. I do not agree, however, that the court has no discretion whether to grant the remedy or not. The discretion is in regard to granting the declaration as a remedy not in making the interpretation. The court has no discretion to interpret the Constitution other than it is, but it has discretion to grant or refrain from granting a declaration as a remedy. It will suffice to refer to two judicial precedents where the discretion was invoked in Uganda. In Opoloto vs. Attorney General, (1969) EA 631, the appellant, formerly Chief of the Defence Staff in Uganda Army sought a declaration that his discharge from the army was invalid. The Court of Appeal for East Africa said -
"Under Order 2 rule 7 of the Civil Procedure Rules the court may make a binding declaration of right whether or not any consequential relief is or could be claimed. This is a very wide power but it is a discretionary power and one, which should be exercised if at all, only with the greatest caution." (Emphasis added) The court, after reviewing surrounding circumstances, including the fact that the position the appellant was discharged from was connected with state security and one requiring confidence of the head of government, declined to grant that declaration. Similarly, in Andrew Lutakome Kayira & Another vs. Edward Rugumayo & Others, Constitutional Case No.1 of 1979, the Court of Appeal for Uganda, as the court with exclusive original jurisdiction over constitutional interpretation, refrained from granting a declaration that the removal of Prof. Yusuf Lule from office of President of Uganda by the National Consultative Council (NCC) was unconstitutional, though the majority held that the NCC had no power to remove the President from office.
The Constitution, in Article 137, vests in the Constitutional Court jurisdiction to interpret any of its provisions and power to grant a declaration on basis of its interpretation. It is however silent on the manner of exercising that power. I find nothing in the Article or else where that could be construed as a restriction on the court's inherent discretion in exercising the power to grant the remedy of a declaration. Upon finding that an act or omission is inconsistent with or in contravention of a provision of the Constitution, the court should consider if granting the declaration is an appropriate remedy. In the instant case, even if the court's finding that the referendum contravened Article 69 was correct, the court in exercise of that discretion ought to have considered if in all the circumstances it would be appropriate to grant the declaration that the referendum was invalid. The pertinent circumstances were that the respondents' petition, which had pre-emptively challenged the referendum, was not tried and concluded until four years after it was filed. Meanwhile the referendum was held in which the majority of the electorate voted in favour of the movement political system and the system was duly adopted. The following year, Presidential and Parliamentary elections were conducted in accordance with that system. Later the same was done in respect of local governments, and generally the political affairs of the state were for more than four years conducted on the basis of that system. A declaration that the referendum was null and void would in all probability nullify not only the referendum but also all that had been done in consequence of its result. Needless to say, that would have created political and constitutional instability and uncertainty, unproportional to the benefit the country would have derived from such remedy. In my view those were compelling circumstances, where the court would judicially exercise its discretion to refrain from granting the declaration. But, for avoidance of doubt, I have to reiterate that in the instant case the exercise of the discretion did not arise since, as held by this Court, the referendum was not invalid.
Doctrine of Prospective Overruling.
In ground 14 the appellant criticised the Constitutional Court for refusing to apply the doctrine of" prospective overruling" to the instant case. The ground reads -
"14. The learned Judges of the Constitutional Court erred in law and in fact in holding that the doctrine of prospective over-ruling could not apply to the petition."
This ground was principally pursued in the alternative, in case this Court upheld the Constitutional Court decision to nullify the impugned Act and/or the referendum. To my understanding, the appellant's objective was to save the referendum from being nullified consequent upon the nullification of the impugned Act. Counsel for the appellant sought to persuade this Court to hold, pursuant to the doctrine of prospective overruling, that the nullity of the impugned Act, if any, should take effect from the date of the court's decision; and that anything previously done on its authority, including the referendum, is not vitiated by that nullity. Since we held that the referendum was valid, irrespective of the nullity of the impugned Act, it was unnecessary to consider if the Constitutional Court should have applied the doctrine to save it. Accordingly ground 14 was not determined. In my view however it had to fail since by the holding of this Court, the doctrine did not arise.
Because the doctrine in issue has been embraced by many jurisdictions, though still apparently a novelty to our own jurisprudence, it is useful to express views, albeit obiter, on its scope and to consider its viability as a tool in our own constitutional interpretation. The learned Chief Justice has, in his reasons, ably and exhaustively outlined the development and scope of the doctrine by reviewing a substantial number of cases in which courts in North America, Asia, Europe and South Africa considered and applied the doctrine. I will confine myself to a few observations on the considerations on which the courts have based application of the doctrine; and my opinion on the viability of the doctrine in our jurisprudence.
Under the doctrine of prospective overruling, when a competent court declares a law to be invalid it may, in special circumstances, order that the declaration will apply only to the future, i.e. prospectively, and will have no retrospective effect. I would categorise the cases availed to us in which the doctrine has been applied into three. The first category includes cases where the court's decision declaring the law to be invalid amounts to a departure from its previous decisions holding or applying that law as valid law. Upon applying the doctrine and ordering that its new declaration shall have no retrospective effect, the previous decisions, remain undisturbed as if the law was valid when they were pronounced. That is the context in which the following courts applied the doctrine in the mentioned cases; namely the U.S. Court of Appeals, Fifth Circuit, in Linkletter vs. Walker, Warden 381 US (1965) 618; the Supreme Court of India in Golak Nath vs. State of Punjab (1967) AIR 1643; and the Supreme Court of Malaysia in Public Prosecutor vs. Dato Yap Pens (1988) LRC (Const) 69. Describing the doctrine in relation to that category, Abdoolcader S.C.J., in Dato Yap Pens case (supra) said at p.93, the doctrine is -
"to the effect that when a statute is held to be unconstitutional after overruling a long-standing current of decisions to the contrary, the court will not give retrospective effect to the declaration of unconstitutionality so as to set aside proceedings of convictions or acquittals which had taken place under that statute prior to the date of judgment, which declared it to be unconstitutional, and convictions or acquittals secured as a result of the application of the impugned statute previously will accordingly not be disturbed."
The second category is where in making a declaration of invalidity the court, though not departing from any previous decisions to the contrary, is interpreting the law differently from what hitherto the public had mistaken it to be and on which they had in good faith regulated their affairs and relationships. Upon the court applying the doctrine, and ordering the declaration to have only prospective effect, the affairs and relationships previously entered into in accordance with the misinterpretation remain undisturbed. The judgment of the Court of Justice for the European Communities (CJEC) in Defrenne vs. Sabena (1981) 1 All ER 122 falls in this category. That judgment was on a reference from a Belgian court of two questions concerning the effect and implementation of Art.119 of the EEC Treaty regarding the principle that men and women should receive equal pay for equal work. Upon holding that national courts of member countries were under obligation to enforce the principle even in absence of national law to domesticate the provisions of Art.119, the CJEC applied the doctrine because employers had been led to believe the contrary. The holding is summarised in the head note of the report at p. 123 thus -
"(5) Since employers had been given the impression by the Commission of the European Communities and the member states themselves that discriminatory practices could be maintained until prohibited by national law, considerations of legal certainty required the court, as an exceptional measure, to declare the law for the future only except for those who had already commenced proceedings."
The third category is where, upon holding a legislation to be unconstitutional, the court has applied the doctrine of prospective overruling to suspend the declaration of invalidity in order to give the legislature time to rectify the defect(s) in that legislation. This category was evolved by the Supreme Court of Canada in the cases of Reference re Manitoba Language Rights (1985) 1 S.C.R. 721, and Schacher vs. Canada (1992) 2 S.C.R. 679. This category was given recognition in the South African Constitution, which empowers the court to annul a law for inconsistency with the Constitution, but provides that the court may require the legislature to correct the defect in the law within a specified period, and that such law shall remain in force pending correction or expiry of the period so specified.
I discern two important characteristics common to the three categories. First, the application of the doctrine is at the discretion of the court. Even in South Africa where the doctrine is embodied in the constitution, its application is at the discretion of the court. Thus, in Case and Another vs. Minister of Safety and Security (1996) S.A. 617 (CC), where the Constitutional Court of South Africa, declared provisions of a statute unconstitutional and therefore invalid, it rejected an application for it to invoke the doctrine and suspend the invalidity. In the court's view the immediate taking effect of the declaration would not create a lacuna in the law, as there were other laws that covered the feared mischief. Secondly, although the grounds on which the courts have applied the doctrine are expressed in different formulations, the core ground is that if the invalidity is allowed to have retrospective effect it would lead to injustice, hardship, lacuna in the law or legal chaos involving rights and obligations vested under the invalidated law. In Linkletter vs. Walker (supra), (the apparent origin of the doctrine of prospective overruling), the court considered if it should give retrospective effect to its recent decision in Mapp vs. Ohio 367 U.S. 643 in which it had overruled a long-standing decision in Wolf vs. Colorado 338 U.S. 25 and held that "all evidence obtained by searches and seizures in violation of the Constitution is... inadmissible in a state court." In deciding to make the holding apply to the future only, the majority judgment in Linkletter case noted, inter alia, the numerous final decisions of state courts in which such evidence had been admitted in accordance with Wolf vs. Colorado (supra) that would be liable for revision, and observed -
"Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed." The majority concluded thus -
"All that we decide today is that though the error complained of might be fundamental it is not of the nature requiring us to overturn all final convictions based upon it. After full consideration of all the factors we are not able to say that the Mapp rule requires retrospective application."
On the other hand the South African Constitution empowers the court to apply the doctrine on a wider criterion; namely "in the interest of justice and good government". While every jurisdiction embracing the doctrine will determine on what criteria it will apply the doctrine, in my view its legitimacy can only be justified on the purpose for which it was evolved, namely to alleviate unjust or other undesirable consequences from the strict adherence to the much older common law doctrine to the effect that a law declared by the court to be void is deemed to be void ab initio. In other words, the doctrine of "prospective overruling" has been evolved by the courts to counter the ills or excesses of the absolute application of another doctrine, i.e. the doctrine of "retrospective overruling" similarly evolved through case law. I understand the former to be a qualification, and not a substitute of the latter.
In conclusion I am constrained to observe that although the doctrine as named and described appears to be a novelty in Uganda, its substance is not so alien. To my understanding, it is a variety of, or improvement on the court's inherent discretion, which we referred to in the judgment and which I discussed earlier under grounds 4, 7 and 8. The difference between the two, which in my view is not very substantial, is that under the doctrine of prospective overruling the court grants the declaration of invalidity, but uses its discretion to determine and order when the declaration takes effect, while invoking the inherent discretion to decline issuing the declaration as a remedy, is like the proverbial burying of the head in the sand. In my view therefore, there should be no difficulty in applying the doctrine of prospective overruling in Uganda in appropriate circumstances. For example, I would opine that if it had been prayed that declarations of invalidity in two recent cases, one by this Court and the other by the Constitutional Court, be applied retrospectively, the court's inherent discretion would most probably have been invoked to reject the application. In Charles Onyango Obbo and Andrew Mwenda vs. Attorney General, Constitutional Appeal No.2 of 2002, (unreported), this Court declared that section 50 of the Penal Code Act was unconstitutional. The appellants had been convicted and sentenced. No order was made to quash or annul the conviction, though we criticised the Constitutional Court for having ordered that the prosecution under that section must precede the determination of its validity. Obviously any attempt to apply that decision retrospectively to review or revise previous convictions would not succeed. In Uganda Association of Women Lawyers and 5 Others vs. Attorney General, Constitutional Petition No.2 of 2002, (unreported), a public interest petition, the Constitutional Court declared that several sections of the Divorce Act violated the constitutional principle of gender equality and were therefore, null and void. Although the court was not asked to, and did not express itself on the issue, its declaration cannot be construed to have implicitly affected the validity of court decrees and other orders made previously on basis of those annulled sections of the Divorce Act. Construing that declaration as having retrospective effect would lead to legal chaos.
In the instant case the Constitutional Court expressed the view that the doctrine of prospective overruling was applicable only to criminal cases. Obviously, that view was per incurium as the jurisdictions that have so far embraced it have not confined its application to criminal cases only. Indeed the two Ugandan cases of Charles Onyango Obbo (supra) and Uganda Association of Women Lawyers (supra), illustrate that the distinction is unjustified. The Constitutional Court also opined that only the highest court could invoke the doctrine. I think that makes sense in Uganda, but only where the declaration of invalidity amounts to departing from its previous decision that the law in question was valid, since only the Supreme Court can depart from its previous decision if it thinks it is right to do so. I see nothing to prevent the Constitutional Court applying the doctrine in circumstances similar to those in Defrenne case (supra).
Finally, while I appreciate the concerns so eloquently articulated in his reasons on the possibility of courts abusing discretionary powers in their hands, with the greatest respect, I do not share the of my learned brother, Kanyeihamba JSC, that on account of that we should not accept the doctrine in Uganda. Misapplication or abuse of discretion is not a preserve of Uganda or developing countries, as the many examples he has listed demonstrate. In my view, it is irrefutable that strict application of the doctrine of retrospective overruling at times leads to undesirable consequences. The doctrine of prospective overruling used in a judicious manner enables the court to avoid such consequences. What is important therefore, is to establish criteria upon which the later doctrine should be applied. I go along with the broad proposal made by the learned Chief Justice in his reasons, that the doctrine is based on judicial discretion to do justice in all cases while protecting such values and goals as "preservation of the rule of law and a stable constitutional order and the prevention of chaos and anarchy". To this I should add an observation that as the doctrine entails the exercise of discretionary power, the doctrine of prospective overruling ought to be applied judicially and cautiously in exceptional circumstances; and the fiat that it must never be invoked if its application would result in legitimising anything done mala fides, or in undermining the integrity or wholesomeness of the Constitution.
REASONS OF TSEKOOKO, JSC, FOR THE DECISION OF THE COURT
We concluded the hearing of this appeal on 11/8/2004 and reserved our judgment to be given on a date to be notified to the parties. However, after studying the record of appeal and considering the issues raised therein and submissions made before us, we agreed on the decision of the Court but we realised that we would take time to write detailed reasons on some important issues. We, therefore, agreed to announce the ultimate decision which we delivered on 2/9/2004 and promised to give detailed reasons individually later. I have read in advance the draft reasons of my Lords the learned Chief Justice, and of the other members of the Court. Because of the importance of the matters raised in the appeal, I want to give in my own words my reasons in support of the decision of the court. I will first summarise the background to this appeal. The learned Chief Justice has set out the allegations which the respondents listed in their petition and the prayers for declarations sought in the Constitutional Court. Five issues were framed for decision by the Constitutional Court-Article 271 ["the Article"] of the Constitution provided for the holding of a referendum in the fourth year of the life of the Parliament which would be elected after the promulgation of the 1995 Constitution. That Constitution was promulgated on 8/10/1995. Elections for the first Parliament following the promulgation took place in June, 1996 and the life of the resultant Parliament began on 2/7/1996. So the said referendum was due to be held before 1/7/2000.
Clause [4] of "the Article" empowered Parliament to enact a law to give effect to the provisions of the Article. In effect this meant enacting a law to regulate the holding of the referendum. On 2/7/1999, Parliament enacted the Referendum and Other Provisions Act, 1999 [Act 2 of 1999] to that effect. The respondents in the present proceedings challenged the validity of the enactment of that Act in Constitutional Petition No.3 of 1999. The Constitutional Court declared Act 2 of 1999 null and void on 20/8/2000. Prior to that judgment and because the Government appears to have anticipated the Court outcome of that Constitutional Petition (No.3 of 1999), the Government caused Parliament to debate and pass the Referendum [Political Systems], Act, 2000 [Act 9 of 2000] within three hours of the afternoon of 7/6/2000.
The respondents were aggrieved by the procedure adopted in passing Act 9 of 2000 and were also dissatisfied with the contents of some of the provisions of the same Act. On 22/6/2000, the petitioners instituted a Constitutional Petition from which this appeal arises. In that petition, the respondents challenged the validity of Act 9 of 2000 on several grounds and prayed the Constitutional Court to declare the Act null and void. Unfortunately and inspite of the urgency and importance of the petition, the Constitutional Court postponed indefinitely the hearing of the petition despite the express provisions of Article 137(7) which require the Court to hear and determine a constitutional petition as soon as possible. Consquently, on 17/10/2000, the hearing of the petition was adjourned indefinitely pending the outcome of another Constitutional Petition (No.7 of 2000) which hod been instituted by some other persons. It was not until April, 2004 that the Constitutional Court was able to hear and dispose of the petition, declaring Act 9 of 2000 null and void. The Court also made other declarations including a declaration that the referendum which was held on 29/6/2000 pursuant to Articles 69 and 271, and the results of the referendum were of no effect. The Attorney-General appealed to this Court against that decision. Fourteen grounds of appeal were formulated and filed in this Court.
During the hearing of the appeal, Hon. Amama Mbabazi the then Attorney General was assisted by Mr.J. Matsiko, Principal State Attorney (PSA), to prosecute the appeal. He abandoned ground 1 and indicated that appellant, would argue the rest of the grounds as follows: 2 and 3 together, 4,7 and 8 together, 5 and 6 together, 9 and 10 together, 11, 12, 13 and 14 separately. That order was followed except that grounds 11 and 12 were indirectly argued. I start with the second and third grounds which were formulated in these words:
2. The learned judges of the Constitutional Court erred in law and in fact in holding that the expired Referendum (Political Systems) Act, 2000 can be challenged as being unconstitutional. 3. The learned Judges of the Constitutional Court erred in law and in fact in hearing and deciding on a Petition challenging a non-existing dispute on the basis of a non-existing law.
These two grounds relate to the first issue which was framed in and decided by
the Constitutional Court.
The issue before that court read as follows: -
Whether or not the Referendum (Political Systems) Act, 2000 is law and can be challenged.
In our judgment which we delivered on 2/9/2004, we found that the Referendum (Political Systems) Act No.9 of 2000 was enacted as an Act of Parliament and was in force on 22/6/2000, when the respondents filed the petition in the Constitutional Court, alleging that the Act was passed in contravention of diverse provisions of the Constitution, the subsequent expiry of the Act, after its purpose was accomplished, did not erase its effects, nor did it extinguish the cause of action to which its enactment gave rise. We concluded that the Constitutional Court was seized of a live and existing dispute and did not err in holding that the Act can be challenged in Court under Article 137 of the Constitution.
Mr. Joseph Matsiko, argued grounds 2 and 3 on behalf of the appellant. He opened his address by posing the question-
"At the time when the petition was heard (on 28/4/2004) was there a dispute that required a resolution by the Constitutional Court?"
According to him, there was no dispute and, therefore, the Constitutional Court had no business in hearing a dispute which no longer existed in as much as the referendum had been held under an Act which had itself expired on 29/6/2000 on the day the Referendum was held. He contended that none of the rights created by the Referendum (Political Systems) Act, 2000, were under challenge in the Constitutional Court. The learned Principal State Attorney added that: -
"dormant law remains ineffective" and cited Attorney-General Vs D. 3. Rwanyarare and 9 Others
[Constitutional Appeal No.2 of 2003] [unreported] in support. Mr. Matsiko's arguments are similar to those which were advanced in the Constitutional Court by Mr. Tibaruha, the Solicitor-General. The Constitutional Court rejected the learned Solicitor-General's arguments.
Mr. G. Lule, for the respondents, adopted the arguments he had made during the hearing of the petition, in the Constitutional Court, where he prosecuted the petition on behalf of the respondents. In his submissions before us, he combined grounds 2,3 and 14. I will here refer to those of his arguments as are relevant to the first two grounds and to issue 1 as framed by the Constitutional Court.
In the Constitutional Court, Mr. Lule contended, and he repeated that contention before us, that Act No.9 of 2000 was law and can be challenged under clause [3] of Article 137 of the Constitution. He argued that in the petition the respondents, as petitioners, challenged the Act by alleging that the Act was made in contravention of the Constitution. He further argued that by virtue of Article 50 of the Constitution, a threatened wrong can be challenged in Court and that by challenging Act No.9 of 2000, the respondents intended to stop the referendum. Therefore the holding of the referendum was challenged before it was even held.
Clause [1] of Article 50, state -
"(1) Any person who claims that a fundamental or other right guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent Court for redress...... "
In the pleadings, the respondents alleged that Act No.9 of 2000 was inconsistent with some provisions of the Constitution, particularly Articles 20,21,29,43, 73, 269 and 271.
The pleadings alleged;
"that omission by Parliament to enact the Political Organisations Bill under Article 269 of the Constitution had so corrupted the democratic process that the fundamental right to free and fair elections cannot be provided in the Referendum in contravention of Article 69 of the Constitution."
Clause [3] of Article 137 reads-
"[3] Any person who alleges that -
(a) an Act of Parliament or any other law or anything in or done under the authority of any law;
is inconsistent with or in contravention of a provision of this constitution, may petition the Constitutional Court for a declaration to that effect. "
There is no doubt in my mind that because of the allegations made by the respondents, in their petition they had established a cause of action entitling them to institute the petition in the Constitutional Court challenging Act No.9 of 2000 and the activities intended to be carried out or implemented under the authority of the Act. The appellant argued in the Constitutional Court and in this Court, that because the Act was made for the sole purpose of holding a referendum and that sole purpose was achieved, i.e., a referendum was held on 29/6/2000 and the results were announced, the Act expired on that day, it has since been wiped off from our statute books and, therefore, there is no law to challenge nor any dispute to settle. With due respect I cannot agree with this type of reasoning which is premised on wrong basis. In my opinion the policy or scheme of the Act is instructive.
First of all the Act itself does not set its life span or a dateline when it would expire after the conduct of the referendum.
The argument by the learned Principal State Attorney that the Act expired on the day the referendum was held ignores the effect or policy of some of the provisions of the same Act. For instance, S.5(4) provided for holding the referendum on the same day in the whole of Uganda unless it is impracticable to do so. "In that case the referendum may be held on different dates in different places as is practicable".
Here the Act itself shows the legislature anticipated a possibility of the Act lasting beyond the day when a referendum could be held in different parts of the country. I think that if Act 9/2000 was intended to expire on the day the referendum was held or on the day the results of the referendum were announced or were published, the Act would have clearly stated so. The Constituent Assembly Statute, 1993 [Statute No.6 of 1993] provides a clear illustration of this view. In section 2 thereof, it stated: -
"2 This statute shall come into force on such date as the Minister may, by statutory instrument, appoint and shall remain in force until the day the new constitution comes into force, and on that day, shall expire."
These definitive words of an enactment do not appear anywhere in Act 9 of 2000, nor even in S.29 which provides for transitional matters nor indeed in its interpretation section 3. The Act was enacted like any other ordinary Act intended to endure for some unspecified time to cater for the consequences that would arise during the implementation of the Act.
Second, the provisions under section 17 of the Act are equally instructive. Under its subsection (1), any registered voter with the support of 2% of the total number of voters in Uganda can within 30 days after the results are published in the Gazette petition the High Court challenging the results of the referendum. In this case the results were published in the Gazettee under General Notice No.280 on 28/7/2000. That gazetting was made under Act 9/2000 meaning that the Act never expired on 29/6/2000 as contended by the appellant because the gazetting was done under the authority of S.9 of the Act and this was done a month after the referendum was held and results thereof declared.
In addition, because of the provisions of subsection (4) of S.17 of the Act, any body could have lodged a petition challenging the results, latest by 27/8/2000. Still, under subsection (6) of the same section 17, the High Court had 30 days from 27/8/2000 within which to try and dispose of the petition.
Under S.8 where, in a referendum, no side obtains the majority..., the referendum shall be repeated. Needless to say, repeating the referendum would have to be organised later than 29/6/2000 under Act 9 of 2000 in order for the referendum to be lawful. This implies the Act would still be in force at that time.
Under subsection (13) of S.17, if the referendum were annulled, by the High Court, a fresh referendum
"shall be held not later than ninety days from the date of annulment"
It seems to me that if there was such an annulment a fresh referendum would be held under the provisions of the same Act, meaning thereby that the Act would remain in force to enable the fresh referendum to be held.
It is noteworthy that if a petition were filed and determined by the High Court, a person aggrieved by the decision of the High Court had a right under the Act to appeal to the Court of Appeal. From the wording of the provisions of S.20, such an appeal could take some time before it would be disposed of, therefore, implying that though the appeal must be heard and disposed of expeditiously, one cannot be exact as to how long court proceedings from the High Court to Court of Appeal, could take to complete the Court process. Incidentally, under subsections (2) and (3) of section 13 of the Interpretation Act, investigations, inquiries, etc, commenced under a repealed or an expired Act, of Parliament are not affected. S.13 (2) and 13 (3) read as follows: -
(2) Where any Act repeals any other enactment, then unless the contrary intention appears, the repeal shall not -
(a) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed;
(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;
(c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.
(3) Upon the expiry of any Act, this section shall apply as if the Act had been repealed."
These provisions reinforce the view I take that these proceedings were properly conceived and have been conducted according to law. Besides, in this country, there is a growing body of constitutional case law supporting the view that there should be no time limit to litigation arising out of violations of constitutional rights: See Attorney General Vs D. Tinyefuza [Constitutional Appeal No. 1 of 1997], I. Serugo Vs Kampala City Council and Another [Constitutional Appeal No.2 of 1998] [unreported] especially pages 23/24 of the judgment of Mulenga, JSC.
From what I have discussed above it appears to me that the framers of Act No. 9 of 2000 were aware of many imponderables that would arise from the implementation of the Act and therefore those framers could not fix a dateline when the Act would be deemed to have expired or a date when enforcing of rights thereunder would be extinguished.
The policy of Act 9 of 2000 was such that court proceedings in relation to the holding of the referendum could not die with the holding of the referendum and the announcement of results or indeed the expiry of the Act. It is a question of construction whether the effect of certain provisions in an expired statute survive its expiration. See Gill Vs British East Africa Timber (1956) 23 EACA 202. Where provisions of an expired statute have a continuing effect for certain purposes and the decision is based, not on specific words but on the general policy of the statute, the court should be greatly influenced by the justice of the case: A reasonable man would expect Court proceedings in the present case to run their full course including determination of this appeal. That is the legacy bequeathed by the Act.
Mr. Matsiko relied on our decision in Attorney General vs. Dr. 3. Rwanyarare & 9 others [Supra] in support of his arguments that Act 9 of 2000 could not breach the Constitution because it had expired. He implied that it was dormant. In my opinion, and with due respect to Mr. Matsiko, the basis of our decision in that appeal is distinguishable from the case before us.
At the risk of being lengthy I will summarise the facts of that petition. Parliament enacted the Political Parties and Organisations Act, 2002 in May, 2002. The Act received Presidential Assent on 2/6/2002 and was gazetted on 17/7/2002.
Dr. Rwanyarare and 9 others instituted Petition No.7 of 2002 in the Constitutional Court on 31/7/2002 and in the petition the main ground of grievance was that the Act was inconsistent with and contravened the Constitution. The Attorney General, as the respondent, filed an answer to the petition raising some points of law concerning the competence of the petition. Subsquently, he filed a notice of motion seeking to have the petition struck out on the ground that the petition was filed outside the 30 days limitation period prescribed by Rule 4 of Legal Notice No.4 of 1996. The Attorney General's view was that the Act became law on 2/6/2002 upon receiving Presidential Assent and not on 17/7/2002, the date on which it was gazetted, as argued by the petitioners in that petition.
The Constitutional Court accepted the arguments of the petitioners and so it dismissed the notice of motion.
The Attorney General appealed to this Court against the ruling of the Constitutional Court. The central issue argued both in the Constitutional Court, by the Attorney General, and in this Court on appeal, by Mr. Matsiko, was that the Act became effective on 2/6/2002 when it received Presidential Assent. Mr. Walubiri, counsel for the petitioners, argued that the Act became effective on
17/7/2002, the date it was gazetted as provided for by the Acts of Parliament Act (Cap.2) and, therefore the petition which was filed on 31/7/2002 was filed within the 30 days period prescribed by the applicable law. We upheld the ruling of the Constitutional Court which had accepted the arguments of Mr. Walubiri.
In our judgment we referred to subsections (1) and (2) of section 14 of Cap.2 and said:
"According to these provisions an Act of Parliament passed following the normal parliamentary law enacting process, becomes a law when it is assented to by the President. However, we understand subsection (2) to imply that a law remains dormant until the day upon which it becomes enforceable and that day is the date of commencement which may be set out in the Act itself or upon publication in the Gazette. Needless to say, a dormant law can not break the constitution, because it is ineffective."
It is very clear from this passage that in the interlocutory Appeal No.2 of 2003 [supra] we were considering a period during which the relevant law had not yet become operational and, therefore, Rwanyarare and his co-petitioners could not challenge a dormant law. The limitation period had not begun to run because the Act was dormant until 17/7/2002. In the present appeal Act 9 of 2000 was operational and effective when the present respondents challenged its validity.
It was because of the reasons I have endeavoured to give and those set out in our decission of 2/9/2004 that I supported the decision of the Court that grounds 2 and 3 must fail.
This brings me to grounds 5 and 6 which were formulated as under:
5. The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum [Political Systems] Act, 2000 was passed in contravention of Article 271 [2] of the Constitution. 6. The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum [Political Systems] Act, 2000 amended Article 271 (2) of the Constitution.
These two grounds relate to issue No.3 as framed in the Constitutional Court. It was framed this way: -
"Whether or not the Act [9/2000] was made in contravention of Article 271 of the Constitution." All the five Justices of the Constitutional Court answered this issue in the affirmative. I respectfully agree with their conclusions.
We stated in our decision of 2/9/2004 that under its Transitional Provisions in Chapter 19, the Constitution required Parliament under Article 271, to enact laws to give effect to the provisions of the Article. We upheld the conclusion of the Constitutional Court that Act 9 of 2000 was passed by Parliament in contravention of the provisions of Clause [2] of Article 271.
Before us Hon. Mbabazi, the learned Attorney General, in his submissions on these two grounds, opened his address by contending that the Constitutional Court had no legal and factual basis for holding that Act 9 of 2000 contravened Article 271 or that the Act amended clause [2] of the Article. In reference to the holding by the Constitutional Court that Ugandans did not have time for canvassing in support of their sides, the learned Attorney-General submitted that the combined effect of clauses [2] and [3] of Article 271 was that any person was free to canvass for one year and that the right to canvass had been granted by the Constitution. The learned Attorney General further contended that the petitioners did not discharge the burden of proving that there was no canvassing or that there was no law authorising canvassing. He relied on Presidential Election Petition No.1 of 2001, Col. Dr. Kiiza Besigye Vs Y.K. Museveni & Another [unreported] in which this Court alluded to the normal rules of the burden of proof in civil cases. The learned Attorney-General argued that all the five Justices of Appeal erred because there was no evidence before them to support their conclusions that the right given to the public to canvass was violated. He again contended that the affidavit evidence in the supplementary affidavit of Hon. Zachary Olum, the second Respondent, could not be relied on for the view that Ugandans were prevented from canvassing. In his view, the Referendum and Other Provisions Act, 1999 [Act 2/99] which had been enacted on 2/9/1999 (of which the Constitutional Court and the Petitioners were aware) was enacted in compliance with clause (2) of Article 271 and it enabled anybody to canvass for support. By 29/6/2000 when the referendum was held, that same Act [No.2/99] was still in force. The Act was only struck down on 20/8/2000. He also submitted that Regulations designed to guide canvassing made under it were saved by Act 9/2000. He referred us to the opinions of a separate panel of Justices of Appeal in a separate Constitutional Petition No.5 of 1999 [Dr. James Rwanyarare & Haji Badru Wegulo] in which Berko and Engwau JJA, had implied that both sides were in the field soliciting for votes. The learned Attorney General, therefore, argued that since those Justices delivered their judgments in June, 2002, their judgments are proof that there was canvassing in June, 2000 at the time when Act 9/2000 was enacted by Parliament. Consequently the Constitutional Court in the present case ought to have taken judicial notice of the findings of their bretheren in Constitutional Petition No.5/1999. For the same view he further cited Constitutional Petition No.4 of 2000. Dr. J.Rwanyarare & Another Vs Attorney-General [unreported], in which, according to him, the Petition sought declarations similar to those sought in the petition from which arises this appeal and the Constitutional Court [Manyindo, DC, Kato, Berko, Engwau and Kitumba, JJA], held the view that there was a law allowing canvassing.
Mr. Lule when making submissions on this issue in the Constitutional Court argued that Act 9 of 2000 contravened clause [2] of Article 271, in that it narrowed to a lesser period the time provided for canvassing under the Article. That this amounted to a variation of Article 271 and in effect it amounted to the amendment of the Article without following the constitutionally prescribed procedure, by abridging the time stipulated in Clause [2] of Article 271. So people could not canvass in arrears since Act 9/2000 in effect provided a period of less than one month instead of one year within which to canvass.
In his arguments before us and in reply to the Attorney- General, Mr. Lule opined that the issue before this Court was whether the laws put in place were valid laws. According to Mr. Lule, the nullification of Act 2 of 1999 on 20/8/2000 went back to its beginning and so any regulations made under that Act were nullified along with the Act itself. According to learned counsel, Section.27 of Act No.9/2000 excludes anything done under any other law. He cited Boddington Vs Wisson [1951] I ALL E.R.166 in support of his contention, with which I agree in part, that when regulations were revoked, they are treated as having had no existence from the beginning.
Relying on the supplementary affidavit of Hon. Olum, the second Respondent, Mr. Lule argued that many people were excluded from canvassing and were deprived of the right to canvass. Learned counsel submitted that Article 271 [2] was put in place to free people from the restrictions imposed on political parties by Article 269 for purposes of canvassing to change a political system. He contended that the decisions of the Constitutional Court in Constitutional Petition No.4 of 2000, Dr. James Rwanyarare & Another Vs Attorney General [supra] and Constitutional Petition No.5 of 1999, Dr. James Rwanyarare & Haji Badru Wegulo Vs Attorney General [supra] relied upon by the learned Attorney-General to show that there was canvassing, are not relevant. Learned Counsel argued that there had to be evidence proving that in fact there was canvassing.
As I understand grounds 5 and 6, the crux is whether Act 9 of 2000 is valid law. The question of whether there was or there was no canvassing was secondary. I think that the issues raised in both of Dr. Rwanyarare Petitions No.5 of 1999 and No.4 of 2000 [supra] are not quite relevant to the issues raised by grounds 5 and 6. It is convenient to dispose of the relevancy of decisions in these two petitions at this stage.
The learned Attorney - General relied on the two Rwanyarare Constitutional Petitions [No.5 of 1999 and No.4 of 2000] in support of his arguments that there was a law authorising canvassing and that indeed the canvassing did in fact take place. He contended that therefore in the present case, the Constitutional Court erred first to hold that Act 9 of 2000 gave very short time for Ugandan's to canvass when the attention of the Constitutional Court had been drawn to the existence of Act 2 of 1999 which allowed canvassing. He also argued that the Constitutional Court should have taken judicial notice of its judgments in constitutional petitions No.5 of 1999 and No.4 of 2000 on the fact of canvassing.
CONSTITUTIONAL PETITION No.5 OF 1999.
In July, 1999 Parliament enacted Act 2 of 1999. Although it received presidential assent on 3/7/1999 commencement date was 2/7/1999 which must have been done to comply with constitutional requirements. The long title of the Act reads as follows: -
"An Act to make provision for the holding of referenda in pursuance of the provisions of articles 74 and 76 of the Constitution; to give effect to Articles 255,259 and 271 of the Constitution; to cater for any other referendum required to determine any matter; to cater for a change in the political system by petition of district councils and a resolution of Parliament under clause [2] of article 74 of the Constitution: to repeal and replace the Referendum Statute, 1994 and to provide for other matters connected with or incidental to the foregoing."
Dr.J. Rwanyarare and Haji B.K. Wagulo, as leaders of the Uganda People Congress [UPC] felt that the Act was inconsistent with and it contravened certain provisions of the Constitution. The two petitioned the constitutional Court seeking for diverse declarations among which was a prayer asking the court to declare the Act null and void.
Three issues were framed for decision namely -
1. Whether S.4 [2] of the referendum and other provisions Act, 1999 is consistent with and contravened Articles 28 and 128 of the Constitution.
2. Whether S.21[3], [4], [5] [6] and [7] of the Act contravenes Article 29 [1] [a] of the Constitution and
3. Whether sections 4[I] [d], 10; 13[2] and [3] and 26 of the Act are inconsistent with and contravene Article 69 of the constitution.
The learned Deputy Chief Justice, Engwau and Berko, JJ.A., answered all the three issues in the negative and so declined to grant the prayers. On the other hand Twinomujuni and Okello, JJA, answered the three issues in the positive and were inclined to grant the declaration. So by a majority of three to two the petition was dismissed. It is important to note that none of the three framed issues was about canvassing.
During the submissions, however Mr. Walubiri who represented the two petitioners appears to have argued that if one were to canvass for multiparty political systems, one had to be allowed to come out in party colours in order to show that canvassing [campaigning] was fair. According to him the existing law, Act 2/1999, prohibited use of party colours and symbols. It was mainly because of those contentions that the learned justices alluded to either canvassing or campaigning in the course of their judgments while considering the third issue. That issue was about contravention of Article 69 which is about choosing a political system.
When arguing the present appeal the learned Attorney-General referred to those parts of the judgments of Manyindo DCJ, Engwau and Berko JJA, when each concluded consideration of the third issue. Even then I do not see anything in the same judgements pointing to evidence from which the learned Justices could conclude that canvassing took place.
Although the present appeal is not from a decision in Constitutional Petition No. 5 of 1999 to warrant long discussion of that decision I am obliged to refer to a portion of Engwau JA's judgement. Without pointing out supporting evidence he stated:
"Both sides are on board soliciting for votes during the referendum. It is a statutory duty for the Electoral Commission to ensure that the referendum is conducted in a free and fair manner. Article 269 of the Constitution is still valid law. I do not see how multiparty political system can operate under individual political party banner in breach of article 269."
I think that this statement does not dispel the point raised by the second respondent in this appeal in his supplementary affidavit sworn in October 2000 that whenever he and his group attempted to canvass for support, they were prevented from doing so.
As I said earlier, whether or not there was canvassing was not the issue for determination by the Constitutional Court in Constitutional petition No.5 of 1999. The issue which was decided on 6/6/2000 was the validity and effect of Act 2 of 1999. In my opinion, any reference to canvassing by either counsel or any of the justices was a by the way. Therefore the Constitutional Court cannot be criticised in these proceedings for not relying on by-the-way comments in petition No.5 of 1999.
Constitutional Petition No.4 of 2000
The same two petitioners [Rwanyarare & Haji Wegulo] instituted Constitutional Petition No.4 of 2000. The petitioners challenged the manner of the enactment of Act 9 of 2000 [Supra] and sought to have the Act declared null and void because of the manner of enacting the Act and also because its provisions were inconsistent with and contravened certain articles of the Constitution especially Articles 79, 90 and 271. Out of the seven issues framed for decision, the 1st and the 4th were considered decisive. Those two issues were in effect similar to the third issue in the present case. This is about contravention of Article 271.
Like in petition No.5 of 1999, none of the seven issues was framed specifically on whether or not there was canvassing.
In effect the learned Attorney General submitted that since petition No.4 of 2000 was on all fours with the petition giving rise to this appeal, the Constitutional Court in the latter petition was bound by decision in No.4. I think that the Constitutional Court's decision in petition No.4 of 2000 is distinguishable. The learned Attorney General referred to certain passages in the judgements of the Constitutional Court in support of his submission that actions, such as alleged canvassing, carried out under Act 2 of 1999, were validated by Act 9 of 2000. These arguments relate to issue No.5 which was framed as follows:-
Whether sections 2 and 29 of Act No.9 of 2000 are inconsistent with and contravene article 79 [1] and [3] of the constitution.
Article 79 sets out the functions of Parliament. Be that as it may, Kitumba JA summarised the arguments of both sides on the 5th issue and concluded:-
"I agree with Mr. Byamugisha. According to Article 271 [2] of the Constitution a person was free to canvass for public support for a political system of ones choice two years before the expiry of the first term of Parliament. The Referendum and other Provision Act was in place. The citizens who so wished participated in the referendum process." She does not show evidence proving canvassing. Indeed none of the five justices quoted in their judgements any portions of any affidavit as evidence for the purpose of proving or disproving the fact of canvassing which in any case was not framed as an issue for decision.
As I understand the provisions of Articles 1,69,74, and 271 of the Constitution, these were intended to assure Ugandans that individually and collectively Ugandans are masters of their own destiny and further that Ugandans will always be afforded adequate constitutional time and opportunities to shape the destiny of this country. It is Art. 269 which imposed transitional restrictions. I must quote these Articles.
Art.1. [1] All power belongs to the people who shall exercise
their sovereignty in accordance with this Constitution.
(2) Without limiting the effect of clause [1] of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.
(3) All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.
(4) The people shall express their will and consent on who shall govern them and how they should be governed, through regular free and fair elections of their representatives or through referenda.
According to clauses [1] and [2] of Article 69, the people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda.
The Justices stressed the existence of the right to canvass. With respect Kato and Engwau JJA misunderstood the importance of canvassing and time for doing so. Thus the former stated:
"I am not persuaded by Mr. Walubiri's arguments' that there was not enough time for candidates to canvass. The issue of whether time is enough or not is subjective. In any case neither Articles 69 nor 70 states as to how much time should be taken by the parties to canvass."
Equally, Engwau, JA misdirected himself on the issue of time for canvassing. He wrote in part:-
"Time might have been too short for canvassing for support for a political systems of ones choice for purposes of referendum but that per se does not make sections 2 and 29 of Act 9 of 2000 violate the provisions of Article 271 [2], [3] and [4] or Article 271 [1] and [3] of the Constitution."
With all due respect, I think that this passage reflects a fundamental misunderstanding of the import of Article 271 because certainly abridging time contravened Article 271 [2].
I am satisfied that the decision of the Constitutional Court in petition No.4 of 2000 was partially based on failure on the part of that Court to understand the correct import of Article 271 regarding the period for canvassing and, therefore, the petition was decided on wrong ASSUMPTIONS. In my opinion the decision cannot support the arguments of the learned Attorney General that grounds 5 and 6 should succeed. I proceed to indicate why they cannot succeed.
69 [i] The people of Uganda shall have the right to chose and adopt a political system of their choice through free and fair elections or referenda.
(2) The political systems referred to in clause [1] of this article shall include: -
(a) the movement political system; (b) the multiparty political system; and (c) any other democratic and representative political
system.
269. On the commencement of this Constitution and until Parliament makes laws regulating the activities of political organisations in accordance with article 73 of this Constitution political activities may continue except: -
(a) opening and operating branch offices; (b) holding delegates' conferences; (c) holding public rallies;
271. [1] Notwithstanding the provisions of article 69 of this Constitution, the first presidential, parliamentary, local government and other public elections after the promulgation of this Constitution shall be held under the movement political system.
(2) Two years before the expiry of the term of the first parliament elected under this Constitution, any person shall be free to canvass for public support for a political system of his or her choice for purposes of a referendum.
(3) During the last month of the fourth year of the term of Parliament referred to in clause [2] of this article, a referendum shall be held to determine the political system the people of Uganda wish to adopt.
(4) Parliament shall enact laws to give effect to the provisions of this article.
The provisions of Articles 1 and 271 contain ideals that recognise the sovereignty of the people and how the people exercise that sovereignty in shaping their destiny and ultimately the destiny of Uganda. The transitional Article 269 in its present form severely curtails those ideals. I think that clause [4] of Article 271 makes the effectiveness of clause [2] subject to a proper law to be passed by the Parliament to operationalise the latter clause.
Clause [2] of Article 271 shows that the people of Uganda were supposed to be given an unhindered opportunity to canvass for public support for a political system of their choice for purposes of a referendum. The scheme of Article 271 shows that after the first three years of undisturbed Movement System of Government elected under clause [1] thereof, an appropriate law would be enacted to enable all shades of political opinion to be let free to propagate their own views in support of a political system they would want to be established in Uganda. In such a scenario those who support the movement system would urge Ugandans not to change. While those who believe in multiparty system would urge Ugandans for change of the system. I note that section 13 of Act 2 of 1999 and section 12 of Act 9 of 2000 introduced canvassing for sides whereas clause 2 of Article 271 provided for "any person to be free to canvass for public support for a political system of his or her choice". A "side" was defined in both Acts to mean supporters of an affirmative or of negative "answer to question in the referendum"
Because of the provisions of Articles 69 and 271, canvassing in the field would be for either the movement system of Government or multiparty system of
Government or any other democratic political system. The inevitable conclusion is that the competition to woo voters would be between the adherents of the movement system and the adherents of the multiparty system. Therefore it seems to me to be rather unrealistic to contend, as did the learned Attorney-General, that Ugandans who happen to belong to any political party and who took advantage of the new law allowing all Ugandans space to canvass for peoples' support for multiparty system in the referendum violated the law because DP members went out as members of the Democratic Party. Although paragraph 5 of Olum's affidavit does not mention the dates when he was prevented from holding meetings, I do not read in that affidavit that he and group went out to canvass for DP when the canvassing was for political systems. It wasn't the Democratic Party alone which stood for multiparty system. If an adherent of any of the recognised political parties went out in the field to canvass for multiparty political system, it would not be unimaginable for his/her listeners who know him/her as belonging to a certain political party to treat him as a member of a particular party, however neutral he or she may attempt to be at the arena of canvassing. I doubt whether any ordinary Ugandan would differentiate between the canvass as an idealistic multipartist wholly divorced from his party. In my opinion, therefore, the unchallenged affidavit evidence by Olum that he and his colleagues were prevented from holding meetings in diverse places in Uganda, constitute evidence that at least a section of Ugandan multipartyists were prevented from meeting. Because of the restrictions imposed by Art. 269, absence of a valid law allowing parties to canvass created hurdles.
I should allude at this juncture to Act 2 of 1999 and Act 9/2000 and the effect of their co-existence at the time relevant to holding the referendum. Section 27 of Act 9 of 2000 states:
"Notwithstanding the provisions of any other law, the referendum required to be held under Article 271 of the Constitution shall be held in accordance with this Act"
This provision meant that as from 7/6/2000, or indeed at anytime, except the constitution, no law other than Act 9/2000 regulated the management and holding of a referendum under Article 271.
It is common ground between the parties in these proceedings that Act 9 of 2000 was enacted because the Government anticipated that the fate of Act 2 of 1999 was sealed. Consequently, a new law in the shape of Act 9 of 2000 was enacted giving less than one month within which anybody could canvass for support to change the political system. I have indicated that the two decisions of the Constitutional Court [Rwanyarare Petitions No.4 and No.5] mentioned earlier in this judgment and cited to us and relied upon by the learned Attorney General, in support of the view that Ugandans were free to canvass in the field do not help. Olum's unchallenged affidavit evidence explains this.
I think that the transplanting of certain provisions from Act 2 of 1999 into Act 9 of 2000 on 7/6/2000 meant that the latter Act removed the application of the relevant provisions from Act 2 of 1999. Thus section 13 of Act 2/99 was re-enacted wholesale in identical terms as Section. 12 of Act 9 of 2000. This was one of the most important provisions of either Act. In each enactment the objective and ultimate purpose of that section was to regulate the manner of canvassing by imposing stringent restrictions. Thus a side was to appoint a national committee of not more than 20 members. The Electoral Commission was to issue guidelines for purposes of canvassing and the committees and their agents had to comply with such guidelines.
In my opinion the one year freedom to canvass created by clause [2] of Article 271 was virtually wiped out by subsections [8] [9] and [10] of section 12 of Act 9 of 2000 which read as follows: -
"S.12[8] Any person or group of persons who wishes to canvass for any side in a referendum in any place, by way of meeting or public address, shall, in writing, notify the Subcounty or Division Chief of the area and the police officer in charge of the area, not less than seventy two hours before the canvassing, meeting or public address which he or she wishes to undertake.
(9) A person or group wishing to canvass and referred to in subsection [8], shall give the police officer in charge of the area or the Subcounty or Division Chief such information relating to the activity that person or group wishes to undertake as the police officer may reasonably require, [underlining supplied].
(10) Canvassing for a referendum shall cease twenty four hours before the date of polling in a referendum."
Contravention of any of subsections [8] to [10] attracted penalty.
Given that the referendum was due to be held before 1/7/2000, the stringent conditions imposed by these subsections especially the requirement for a notice of 72 hours [3 days] before holding a meeting to canvass substantially further curtailed the remaining short period of the canvassing. This was made worse by the requirement for prospective canvassers to give to the police or chiefs further information relating to the activity to take place. All these were in my opinion wholly inconsistent with and they contravened the clear provisions of clause [2]of Article 271.
For the foregoing reasons and those set in our decision both grounds 5 and 6 had to fail. That is why I supported the unanimous decision of the Court on 2/9/2004.
I will now briefly consider grounds 4,7 and 8 which were argued together. This is how they are framed:
4. The learned Judges of the Constitutional Court erred in law and in fact in holding that the referendum which was held on 29th June, 2000 was invalid.
7. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the 2000 Referendum on choice of Political Systems was held in contravention of Article 69 of the Constitution.
8. The learned Judges of the Constitutional Court erred in law and in fact in holding that the people of Uganda in a referendum held on 29th June, 2000 never adopted a Political Systems under Article 69 of the Constitution.
The background to these grounds of appeal has been set out. Both the learned Chief Justice and Mulenga JSC have ably considered these grounds. The Constitutional Court declared the referendum held on 29/6/2000 and the result announced on the same day to be of no effect because the Court had declared Act 9 of 2000 null and void. The Constitutional Court reached the latter conclusions because the Court considered these conclusions as natural consequences of its decision that the Act was null and void. In our decision of 2/9/2004 concerning this appeal, we noted that both Articles 69(1) and 271(3) provided for holding a referendum and that a referendum was held. The respondents challenged its validity and the Constitutional Court upheld the challenge. We gave considerable thought to the matter before we concluded that despite the irregularities and the imperfections in the holding of the referendum, because of the two articles, the referendum itself is valid. The referendum became reality and was accepted in that the system put in place on 29/6/2000 is working, and the state functions are operating. Therefore the three grounds had to succeed partially, principally because the referendum was held as a Constitution requirement.
I do not consider it desirable to give more reasons on grounds 9, 10, 11 and 13 than those set out in our judgement of 2/9/2004.
I would like to consider the doctrine of prospective overruling which is the subject of ground 14 of the appeal which is alternative to ground 4. I have already considered ground 4 together with grounds 7 and 8.
Ground 14 reads:
"The learned Judges of the Constitutional Court erred in law and in fact in holding that the doctrine of prospective overruling could not apply to the petition."
In our practice overruling normally connotes over-turning a judicial precedent. Be that as may)
I have read the admirable and exhaustive treatment of this ground by my Lord, the learned Chief Justice. I have also read the reasons of each of my learned brothers. Kanyeihamba JSC strongly argues that the doctrine of prospective overruling should be confined to criminal justice, administrative actions and other cases where discretionary powers and decisions relating to res in personam abound. That it should have no place in constitutional disputes where courts' role should be confined to empirical declarations of law and the precise interpretation of constitutional provisions. With respect I do not share this view. As the learned Chief Justice and Mulenga JSC have demonstrated exercise of discretion whether or not to grant a declaration in a constitutional matter is possible: See the Uganda Court of Appeal decision in Constitutional Petition No. 1 of 1979.
[Andrew Lutaro me Kayira and another vs Edward Rugumayo and others] [unreported].
Mr. Matsiko contended that when a court declares a statute to be unconstitutional, that court should not give retrospective effect to the unconstitutionality and relied on court decisions from USA, UK, India and Malasia. These decisions include Link-letter Vs Walker, Warden 381 US [1965] 618; Public Prosecutor Vs Dato Yap Peng [1988] LRC [Const.] 69 and Sumpson Vs Attorney-General of New Zealand [1955] NLR 279 and the House of Lords Practice Statement [Judicial Precedent] [1966] IWLR 1234.
He urged that even if this Court upholds the decision of the Constitutional Court that Act No. 9 of 2000 is unconstitutional, the actions done or taken under that Act should be saved. He also relied on Section 13 of the Interpretation Act for the same arguments. He criticised the Constitutional Court for nullifying the results of the referendum held under Act 9 of 2000. Mr. Lule for the respondents, as noted earlier, adopted the submissions which he had made in the Constitutional Court. He argued grounds 2, 3 and 14, together and urged us to uphold the decision of the Constitutional Court. Earlier I considered those of his arguments relevant to grounds 2 and 3.
Mr. Lule contended that if the doctrine of prospective overruling were applied there would be no election petitions because election petitions relate to past events. He opined that the cases cited by the appellant relate to series of events or decisions and not to legislative enactment and so the cases are distinguishable.
Mr. Lule appears to harbour the notion that in election petitions, prospective overruling doctrine does not apply. I understood learned counsel to argue that when an election petition is successful, a bye-election which is held after a successful election petition is based on the doctrine of retrospective overruling. With respect, I think that Mr. Lule is not quite correct here. By-elections are held, at any rate in Uganda, because of the relevant electoral laws which do normally require such a course to be taken. For instance, subsection (2) of Section 62 of our Parliamentary Elections Act, 2001, stipulates that where an election is set aside, a fresh election shall be held. Indeed the impugned Act (9/2000) made provision to the same effect in the event of a successful petition in the High Court resulting in annulling the referendum. A fresh referendum would be held.
The doctrine of prospective overruling is well developed in the USA and some other common law countries as cases cited to us illustrate. It is my opinion that this doctrine has recently been emerging in Uganda without the courts stating so. There are examples like Charles Onyango Obbo & A.Mwenda Vs Attorney General - Constitutional Appeal No.2 of 2002(unreported). This Court declared S.50 of the Penal Code null and void, because it was inconstent with the constitution. The appellants had been tried on criminal charges. The Court did not say that that trial or all previous trials, convictions or acquittals which had been held or secured before that decision would be reversed. Similarly, the Editor of Shariat, Haruna Kanabi in H. Kanabi
Vs Uganda (High Court CRIM. Appeal 12/95) had been tried and convicted. His trial was not declared a nullity because of our decision in Onyango Obbo case. Again Constitutional Appeal No.1 of 1998 Attorney General Vs Salvatori Abuki (page 245 of 1999 - 2000 DS.Ct., Constitutional Appeals), the majority held that S.7 of the Witchcraft Act was void because it was inconsistent with Articles 24 and 44 (a) of the Constitution. Although he did not say so, this again must have been a prospective overruling because we did not nullify all previous exclusion court orders made under that Act. We only nullified the order made in respect of the petitioner, Abuki. Indeed even in this Courts Criminal Appeal No.16 of 1999, Kyamanywa Vs Uganda, which we referred to the Constitutional Court to consider the Constitutionality of corporal punishment, subsequently the Constitutional Court ruled [in constitutional Ref. 10 of 2000] that inflicting corporal punishment is inconsistent with Article 24 of constitution. It is my considered opinion that this must be prospective overruling because the Constitutional court did not nullify previous infliction of corporal caning. Initially When I was reflecting on the doctrine of prospective overruling, I formed the opinion that subsection (3) of section 13 of the Interpretation Act (Cap 3 of the Laws of Uganda)(supra) which specifically deals with the effect of repeal or expiry of an enactment is instructive as regards expiry of an Act on vested rights. Indeed Mr. Matsiko urged us to save the referendum under that provision. Upon further reflection, I realised that the effect of a Court declaring an Act of Parliament null and void is deferent from the effect of a repeal or an expiry of an Act which was initially a valid and proper law but ceases to be law because of its repeal by another Act of Parliament or because it expires by operation of law. The rationale is that an Act which is declared null and void is treated as one which had no existence from the beginning.
Turning to the Public Prosecutor case, with respect I think that the Constitutional Court in some respects misunderstood that decision. The facts of that case appear in law reports and have been set out in the judgement of my Lord the Chief Justice. On the doctrines of prospective and retrospective overruling; the Supreme Court of Malasia stated this: -
"When a statute was declared unconstitutional after a long standing current of decisions to the contrary, the court would not give retrospective effect to the declaration so as to set aside proceedings which had taken place under the statute prior to the date of the judgment declaring it to be unconstitutional. The doctrine of prospective over-ruling could be applied by the Supreme Court to give such retrospective effect to its decision as it considered just. But in this case no retrospective effect would be given to the decision." [Emphasis Added]
The Malaysian Supreme Court followed the USA Case of Linkletter v Walker [1965] 381 US 618 and the Indian case of IC Golak Nath v State of Punjab AIR 1967 SC 1643, whose facts have been set out in the judgment of the learned Chief Justice.
In my view and with the greatest respect to the Constitutional Court and to Mr. Lule, the holding in Public Prosecutor case does not confine the application of the doctrine of prospective overruling to only criminal cases. Like in the Practice Statement of the House of Lords, it applies to all cases, Civil, Criminal or Constitutional. However, the House of Lords Practice Statement appears to relate only to overruling its decision but not Acts of Parliament. Its effect is like the effect of jurisdiction conferred on this Court by clause [4] of Art.132 of our Constitution. This appears to give power to make prospective overruling for it reads:-
"The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and ail other courts shall be bound to follow the decisions of the Supreme Court on questions of law."
Again the learned Justices of the Constitutional Court held the view that the doctrine of prospective overruling can be applied only in the Highest Court of the land. The learned justices' attention may not have been drawn to their judgement in the Kyamanywa case [supra]. Recently the same Constitutional Court in Constitutional Petition No.2 of 2003 - Uganda Association of Women Lawyers & 5 Others - Vs - Attorney General [unreported] declared diverse sections of the Divorce Act null and void because the sections were inconsistent with and contravened certain Articles of the current Constitution. Their Lordships decision was rendered on 10/3/2004 about three months before their decision from which this appeal arose was made on 25/6/2004. None of the learned justices indicated whether their decision had retrospective overruling. My opinion is that the decision had prospective application. May be they were not addressed on that aspect but if the decision had the effect of retrospective overruling, it would create chaos in respect of the lives of very many living people whose marriages were dissolved over the years ever since the Divorce Act was enacted in 1904. Such a declaration would affect other people like Children of the parties to different divorces. I think that their ruling can only be treated as prospective.
Obviously each case has its own facts and must be decided on the basis of those facts. It is my opinion that the Constitutional Court decision in Uganda Association of Women Lawyers [SUPRA] appears to support the proposition that in suitable cases, the constitutional Court can make prospective overruling. The main consideration would appear to be the justice of each case.
All the Ugandan decisions I have discussed under ground 14 appear to point to an emerging trend about the doctrine of prospective overruling and its application.
The foregoing are my reasons why I supported the judgment of the Court.
Delivered at Mengo this 7th day of July 2005.
REASONS OF ODOKI CJ FOR THE COURT'S JUDGMENT
This is an appeal against the decision of the Constitutional Court of Uganda dated 25th June 2004, whereby the petition filed by the respondents challenging the validity of the Referendum (Political Systems) Act 2000, was granted, and the Act was declared null and void.
The background to this appeal is that on 7 June 2000, the Parliament of Uganda passed the Referendum (Political Systems) Act 2000 (hereafter referred to as the impugned Act). The Act was made to provide for the holding of a referendum required to be held under Article 271 of the Constitution, to determine the political system the people of Uganda wished to adopt. The referendum was to be held during the last month of the fourth year of the term of Parliament elected under the Constitution. Parliament was required to make laws to give effect to the provisions of Article 271. The Bill for the impugned Act was introduced in Parliament, debated and passed by Parliament in one day on 7 June 2000, after suspending the Rules of Procedure of Parliament. The Bill was not considered by any Standing Committee of Parliament, but by the Committee of the Whole House. The voting procedure during the passing of the Bill was by voices of "Ayes" and "Noes".
The Bill for the impugned Act was assented to on 9 June 2000 and was published in the Gazette on 12 June 2000. The Act was backdated to commence on 2 July 1999. The impugned Act was allegedly made in anticipation that the Referendum and Other Provisions Act 1999, which had been challenged in the Constitutional Court as unconstitutional, might be struck down.
The Act provided for the organisation and procedure for holding the referendum and provided for the procedure for canvassing for the referendum by any side, in the referendum, and the procedure for challenging the results of the referendum in Courts.
On 29 June 2000, the referendum on political systems was held, and the Electoral Commission declared that the people of Uganda had chosen the Movement Political System. Subsequently, Presidential, Parliamentary and Local Government Elections were held on the basis of the Movement Political System.
On 20 August 2000, the Constitutional Court struck down the Referendum and Other Provisions Act 1999 as unconstitutional.
The petitioners made several allegations in the petition which can be summarised as follows:
(a) That the impugned Act was passed in contravention of Article 90 of the constitution and Rules of Parliament, as the Bill was not discussed by the relevant Committee of Parliament. (b) That the Act had the effect of amending Article 271 (2) of the Constitution without following the correct procedures for amending the Constitution. (c) That the passing of the Act just about one year before the expiry of the term of Parliament was done in contravention of Article 271(2). (d) That by failing to comply with Article 73, the Act established one-party state in contravention of Article 75 of the Constitution. (e) That the failure by Parliament to enact the Political Organisations Bill under Article 269 of the Constitution to allow political party activities, adversely affected the fundamental freedom of association and the right to free and fair elections, in contravention of Article 69 of the Constitution. (f) That the Act was intended to nullify the decision of the Supreme Court in Constitutional Appeal No.1 of 2000, between the parties, contrary to Article 92 of the Constitution.
The respondents alleged that by reason of the matters stated in the petition, the Referendum (Political Systems) Act 2000 was unconstitutional and must be struck down as null and void.
The respondents prayed for the following declarations:
"(i) That the passing of the Referendum (Political Systems) Act 2000 by Parliament in one day,7th June, 2000, without first referring it to the relevant Standing Committee of Parliament was inconsistent with Article 90 (1) and (3) of the Constitution.
(ii) That the enactment of a Political Systems Referendum law which denies political parties of the Constitutional right to participate in the referendum to choose a political system under Article 271 but instead institutes the 'Movement' as the only recognised political system before the Referendum is held and in contravention of Articles 20, 21, 29, 73, 75 and 269 of the Constitution is null and void and ineffectual.
(iii) That Parliament was incompetent to enact the Referendum (Political Systems) Act 2000 upon expiry of the time prescribed by the Constitution and thereby reduce the time allowed for canvassing, the law so enacted is null and void.
(iv) That the passing of the Referendum (Political Systems) Act 2000 was outside the competence of Parliament to the extent it was calculated to alter the judgment or decisions of the Courts between the petitioners and the Government.
(v) That the Referendum (Political Systems) Act 2000 is a colourable legislation whose objectives and effect is to outlaw Political Organisations permanently except the
Movement political organisation a nd institute a one party State and consequently the Act is in contravention of the Constitution."
The petition was accompanied by affidavits sworn by each of the respondents and one other affidavit sworn by Hon. Daniel Omara Atubo, in support of the petition.
The appellant filed an answer to the petition in which he stated that both the Referendum (Political Systems) Act 2000 and the referendum which was held pursuant to the Act were enacted and organised in accordance with the Constitution. The answer to the petition was supported by the affidavits sworn by Mr. Joseph Matsiko, Senior State Attorney and the Rt. Hon. Edward K. Ssekandi, Speaker of Parliament.
The petition, which was filed on 22nd June 2000, was not heard until 28th April 2004, over three years after the referendum on political systems had been held on 29th June 2000. At the hearing of the petition, the following issues were framed for determination:
"1. Whether or not the Referendum (Political Systems) Act, 2000 is law and can be challenged.
2. Whether or not the procedures applied in enacting the Referendum (Political Systems) Act 2000 were consistent with the procedures prescribed under the Constitution of Uganda. 3. Whether or not the Act was made in contravention of Article 271 of the Constitution of Uganda.
4. Whether or not the absence of a law regulating
the activities of political organisations as provided under Article 269 of the Constitution contravened Article 69 by perpetuating a political environment under which the people of Uganda could not make a free and fair choice of the political system as to how they should be governed.
5. Whether or not any relief should be granted."
After hearing the petition, the Constitutional Court, by a unanimous decision, allowed the petition with costs to respondents, and made the following declarations:
"(a) The passing of the Referendum (Political Systems) Act 2000 by Parliament on 7th June 2000 was in contravention of Articles 89, 90 (1) and (3) of the Constitution for failure to follow the voting procedure set out in Article 89 and failure to refer the Bill to the relevant Standing Committee of Parliament as prescribed in the Constitution.
(b) Holding the referendum under the Referendum (Political Systems) Act 2000 before passing a law under Article 269 to set free Political Organisations contravened Article 69. (c) Parliament had no authority to pass the Referendum (Political Systems) Act 2000 after the expiry of the period stated in Article 271 (2), without first amending that provision of the Constitution."
The appellant being aggrieved by the above decision appealed to this Court on fourteen grounds, which are stated later in this judgment.
that the holding of the referendum contravened Article 6 9, and substitute it with an order declining to make a declaration in that regard.
4. We order that each party bears its costs of this appeal but the respondents get half of the costs in the Constitutional Court."
I now give my detailed reasons for that decision. In doing so I shall incorporate herein the summary of the reasons we gave for our decision.
At the commencement of the hearing Hon. Amama Mbabazi, the learned Attorney General, indicated to the Court that he would abandon the first ground of appeal which complained that the learned Judges of the Constitutional Court erred in law and in fact in not writing a judgment of the court. At the conclusion of his submissions, Hon Mbabazi informed the Court that he had already covered ground 12 and he would not argue ground 13.
These two grounds were as follows:
"12. The learned Judges of the Constitutional Court erred in law and in fact in failing to evaluate the evidence on record and thereby came to wrong conclusions, and decisions;
13. The learned Judges of the Constitutional Court erred in law and in fact being biased against the Respondent and thereby came to wrong conclusions."
In my view, the learned Attorney General took the right course of action on these grounds.
During the hearing of the appeal, the appellant was represented by Hon. Amama Mbabazi, Attorney General, assisted by Mr. Joseph Matsiko, Acting Director of Civil Litigation. The respondents were represented by Mr. G.S. Lule, S.C. assisted by Mr. Joseph Balikuddembe.
We heard the appeal from 9th to 11th August 2004 and we reserved our judgment to be given on notice. However, in view of the urgency and importance of the issues involved in the appeal we found it appropriate to announce our decision in the appeal and a summary of our reasons on 2nd September 2004 and reserved the detailed reasons for our decision to be given later on notice.
By unanimous decision of the Court, the appeal partially succeeded. We made the following declarations and orders:
"1. In view of our holding on grounds 9, 10 and 11, the first declaration made by the Constitutional Court, to the effect that the Referendum (Political Systems) Act 2000 contravened Articles 89 and 90, cannot stand. We set it aside.
2. In view of our holding on grounds 5 and 6, the third declaration made by the Constitutional Court is upheld but we modify it to read thus:-
"The enactment of the Referendum (Political Systems) Act 2000 on 7th June 2000 was inconsistent with the provisions of Article 271(2) and rendered that Act null and void."
3. In view of our holding in respect of grounds 4, 7 and 8, we set aside the second declaration made by the Constitutional Court to the effect
The remaining grounds were argued by Counsel for the appellant in five batches, as follows: grounds 2 and 3 together; grounds 4, 7 and 8 together; grounds 9, 10 and 11 together; grounds 5 and 6 together; and ground 14, separately.
In rendering the decision of the Court we adopted the same approach with regard to the consideration of the grounds of appeal in batches as adopted by the learned Attorney General, with slight variation. We also altered the order of considering the batches by considering grounds 4, 7 and 8, after grounds 5 and 6, and grounds 9, 10 and 11 in that order. Finally we dealt with ground 14 separately. I propose to adopt the same approach.
Grounds 2 and 3: Challenging the Expired Referendum (Political Systems) Act 2000.
The 2nd and 3rd grounds of appeal state as follows:
"2. The learned Judges of the Constitutional Court erred in law and in fact in holding that the expired Referendum (Political Systems) Act, 2000 can be challenged as being unconstitutional;
3. The learned Judges of the Constitutional
Court erred in law and in fact in hearing and deciding on a Petition challenging a non-existing dispute on the basis of a non existing law."
Arguing the two grounds of appeal together Mr Matsiko, the learned Acting Director of Civil Litigation, submitted that the question to determine is whether at the time of hearing the petition there was a
dispute between the parties which required resolution by the Constitutional Court. The appellant's answer to that question was in the negative. The main reasons for this submission were as follows. In the first place, by the time the Court heard the petition the Referendum (Political Systems) Act 2000 was no longer an Act of Parliament, which could be challenged in the Constitutional Court, under Article 137 (3) (a) of the Constitution, because it had expired upon the holding of the referendum on 29 June 2000.
Mr Matsiko submitted further that learned counsel for the Respondent conceded the point in the Constitutional Court that the Court was performing an autopsy as it were on the Act which was a conception that the Act was dead.
The learned Acting Director of Civil Litigation criticised the Justices of the Constitutional Court for considering the status of the Act when the petition was filed instead of when the judgment was delivered. He submitted further that the rights and liabilities could be challenged but not the Act. He further criticised the Justices of Appeal for holding that the political system adopted in a referendum could be challenged when the respondents did not challenge the referendum which was held under the impugned Act nor did they amend the pleadings to do so.
Finally, Mr Matsiko submitted that a dormant law could not breach the Constitution because it was ineffective. He relied on the decision of this Court in the case of Attorney General vs James Rwanyarare and Others Constitutional Appeal No.2 of 2003. Learned Counsel concluded that the effect of the repealed Act be extended to cover an expired Act.
Mr Lule, learned counsel for the respondents, adopted the submissions which he had made in the Constitutional Court, and informed us that his submission before us would only complement and clarify of matters in the Court. He submitted that the right to challenge an Act arises under Article 137 of the Constitution and the challenge started when the petition was filed alleging that Act 9 of 2000 contravened the Constitution. Learned counsel did not agree with the contention of Mr Matsiko that the Act was challenged but not the referendum held under it. He submitted that the Act was not challenged for the sake of it, but for the purpose of challenging the referendum.
Learned counsel for the respondents argued that under Article 137 (3) anything done under the authority of the Act could be challenged, and the holding of the referendum was challenged under this provision. Furthermore, learned counsel submitted, the challenge to the referendum had been pleaded by implication under Paragraph 1 (c) of the petition, which referred to Article 271 (2). It was the contention of Mr Lule that the challenge to the referendum was obvious, and once the Act was annulled, there was nothing remaining for the referendum to stand on.
The Constitutional Court held that the impugned Act could be challenged because it was still in force at the time the petition was filed, notwithstanding its expiry by the time the petition was heard and determined. In his judgment, Okello JA, with whom other Justices of Appeal agreed, posed the question: "what was the status of the impugned Act on 22/6/2000 when the petitioners filed this petition to challenge it? Was it dormant or active" He then concluded,
'The undisputed evidence available indicates that the impugned Act was passed on 7/6/2000 to provide for the holding of a referendum in compliance with Article 271 to choose a political system. It was assented to on 9/6/2000 and was published in the Gazette on 12/6/2000. Section 2 of the Interpretation Act Cap.3 defines an Act of Parliament to mean a law made in Parliament. The impugned Act therefore became law on 12/6/2000 though its Section 2 backdated its effective dated to 2/7/1999. The referendum for which it was made was scheduled to be held on 29/6/2000. The impugned Act achieved its full effect and therefore became spent when the referendum was held and its results were published by the Electoral Commission (EC) on 28/7/2000 under General Notice No.280. According to the results, the movement political system was adopted.
That meant that when the petition was filed on 22/6/2000 the impugned Act was in force and not dormant. It was challengeable. Failure of the Court to hear and dispose of the petition before the holding of the referendum cannot be visited on the Petitioners. Even if the impugned Act had expired, that expiry could not render the petition incompetent. If it had expired the rights created by the impugned Act would not have been affected by the expiry of the Act. Section 13(2) (c) of the Interpretation Act (Cap.3) saves the rights, privileges, obligations and liabilities created by a repealed or spent Act."
I think those conclusions were justified. Article 137 (3) of the Constitution provides that:
"A person who alleges that-
(a) an Act of Parliament or any other law or anything in or done under the authority of any law; or
(b) any act or omission by any person or authority is inconsistent with or in contravention of a provision of this Constitution may petition the Constitutional Court for a d eclaration to that effect and for redress where appropriate."
This provision as the Constitutional Court held, rightly in my view, empowered the petitioner to challenge the impugned Act, and the petitioners did so before the Act expired. I also agree with the Constitutional Court that even if the Act had expired at the time of determining the petition, the right of the petitioner to challenge the Act had not been extinguished and had been preserved by Section 13(2) (c) of the Interpretation Act which provides,
"Where any Act repeals any other enactment then unless the contrary intention appears, the repeal shall not -
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed."
The Referendum (Political Systems) Act No.9 of 2000 was enacted as an Act of Parliament and was in force on 22nd June 2000, when the respondents filed the petition in the Constitutional Court, alleging that the Act was passed in contravention of diverse provisions of the Constitution. The subsequent expiry of the Act, after its purpose was accomplished, did not erase its effects, nor did it extinguish the cause of action to which the enactment gave rise. The Constitutional Court was seized of a live and existing dispute and did not err in holding that the Act could be challenged in Court under Article 137 of the Constitution. Therefore, I agreed that therefore was no merit in grounds 2 and 3 which failed accordingly.
Grounds 5 and 6: Validity of the Referendum (Political Systems) Act 2000.
The complaints in these grounds are stated as follows:
"5. The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 was passed in contravention of Article 271 (2) of the Constitution.
6. The learned Judges of the Constitutional Court, erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 amended Article 271 (2) of the Constitution."
Hon Amama Mbabazi submitted that clauses (2) and (3) of Article 271 must be read together with the combined effect that any person had a right to canvass for a political system of his or her choice for a period of one year. He contended that the right to canvass for a political system of choice was given by the Constitution and Parliament was enjoined to abide by it. The learned Attorney General argued that Parliament did pass the laws in consequence of that provision. He submitted that the burden lay on the respondents to prove their allegation in the petition that no laws were passed pursuant to Article 271 (4) of the Constitution. He cited the judgment of this Court in (Rtd.) Col. Or Besipye Kizza vs Museveni Yoweri Kaguta and Electoral Commission, Election Petition No. 1 of 2001 (unreported) where it was held that the burden of proof lies on the petitioner to prove their allegations against the respondents. Accordingly, the Attorney General submitted that the respondents failed to adduce any evidence that they were prevented from canvassing for a political system of their choice or that there was no law to allow them to canvass.
The learned Attorney General criticised the judgment of the learned Justices of the Constitutional Court for holding without evidence that it was a fact that the people had not campaigned or canvassed for support. He submitted that the affidavit of Hon Zachary Olum only dealt with the prevention of the Democratic Party from campaigning as a political party and not its members canvassing for a political system of their choice. It was the Attorney General's contention that individuals were free to canvass for a political system of their choice, and that this right existed during the fourth year. He submitted that the evidence of Hon Olum was not sufficient to prove lack of freedom.
In support of his submission that there was a law to provide for canvassing and that people in fact did canvass, Hon Mbabazi referred to the history of the passing of the Referendum and Other Provisions Act (No.2 of 1999) on 2nd July 1999, which provided for holding a referendum on political systems to give effect to Articles 255, 259 and 271 of the Constitution. He contended that the 6th Parliament commenced on 2nd July 1996, and therefore two years before expiry of the term of Parliament fell on 2nd July 1999. He pointed out that the Act was assented to on 3rd July 1999 but commenced operation on 2nd July 1999.
The learned Attorney General pointed out further that Section 13(1) of Act 2/99 provided that any person or group of persons were free to canvass for support of any side of a referendum and that the establishment of national referendum committees was provided for in the Act.
Hon. Mbabazi contended that Act 2/99 was still good law at the time the Political Systems (Referendum) Act 2000 (Act 9/2000) was enacted and also at the time the referendum itself was held. Act 9/2000 made provisions for the holding of the referendum as required by Article 271 of the Constitution, and was assented to on 9 June 2000. He submitted that Act 2/99 was wider than Act 9/2000 which was more specific on the referendum to change the political system.
Hon Mbabazi pointed out that Act 2/99 was declared null and void on 20/8/2000 long after the Act had been enacted and long after the referendum had been held. Therefore, he submitted that even if the Constitutional Court was right to hold that for a person to exercise his right to canvass for a political system of his choice there had to be a law at the beginning of the one year period, that law, Act 2/99, was there and the people had a right under that law to canvass for a political system of their choice.
The learned Attorney General also argued that Sections 2 and 29 of Act 9/2000 saved all previous actions taken in good faith and those actions were deemed to have been made under that Act. It was his contention that Parliament made Act 9/2000 to avoid a constitutional crisis in case Act 2/99 was invalidated by the Constitutional Court, whereas the referendum had to be held within the prescribed period. He contended further that Sections 2 and 29 of the impugned Act did not in fact or in law abridge the time for canvassing nor was Article 271 (2) of the Constitution breached or amended.
In support of his submission that there was a law under which people could canvass for support of a political system of their choice, and that they did in fact do so, Mr Mbabazi referred to the decision of the Constitutional Court in Dr James Rwanyarare and Another vs Attorney General. Constitutional Petition No 5 of 1999 where the Court held that political parties were free to canvass for support through the referendum Committees and that they were allowed to do so by Section 13 of Act 2 of 1999.
Mr Mbabazi pointed out that the above judgment was delivered on 6 June 2000 before Act 9 of 2000 was enacted. It was his submission that the finding of the Constitutional Court was therefore instructive in showing that there was canvassing under Act 2 of 1999. He wondered how the same Court could now turn around and hold in the petition giving rise to this appeal that the people did not have freedom or time to canvass for a political system of their choice. Since there was no appeal in Constitutional Appeal No. 5 of 1999, the previous finding of the Court still stands, he contended.
The Attorney General next referred to the case of Dr James Rwanyarare and Another vs Attorney General and Electoral Commission. Constitutional Petition No.4 of 2000 where the petitioners sought a declaration that the enactment of the Referendum (Political Systems) Act 2000 (No 9/2000) contravened Articles 79, 90 92, 271 and that Sections 2 and 2A of the Act were unconstitutional. He submitted that Petition No. 4 of 2000was on all fours with the current petition from which this appeal arises, a nd that the Constitutional Court held by unanimous decision that:
(a) the citizens who so wished to participate in the referendum were free to canvass for support; (b) Act 2/99 was a general Act whereas Act 9/2000 was a specific Act made in good faith to enable the referendum to be held in time; (c) the Constitution did not bar Parliament from passing validating laws nor did Article 92 bar retrospective legislation except altering the judgment of the Court between the parties; (d) there was sufficient time for canvassing; (e) the referendum on political systems was held legally.
In winding up his arguments, Hon Mbabazi submitted that as a fact people had one year in which to canvass for a referendum, people in fact did canvass, Sections 2 and 29 of Act 9/2000 had the effect of saving acts carried out under Act 2/99, and that consequently, Sections 2 and 29 of the Act did not in fact or in law abridge time for canvassing and Article 271(2) of the Constitution was not amended.
In reply Mr Lule submitted that the contention of the respondents was not that there were no laws, but that those laws were invalid. He a rgued that Act 2 /99 was nullified by the Constitutional Court and that the learned Attorney General had conceded this point.
It was learned counsel's submission that the nullification of the Act went to the root of the matter, to its very beginning. In his view, whatever was done under that Act was invalid. He argued that the law was made in anticipation of the nullification of Act 2/99, following the decision of this Court in Constitutional Appeal No 1 of 2000 on 30 May 2000.
On the question of canvassing Mr Lule submitted that while Section 29 of Act 9/2000 saved everything done in good faith under Act 2/99, the making of Act 9/2000 was not in good faith since the Act was made in anticipation of the first Act being declared unconstitutional. He contented further that the Act was not made subject to Article 69 of the Constitution.
Mr Lule, cited several authorities to support his contention that the invalidity of the Act goes back to the time when it was made, and the subsequent Act could not revive dead regulations made under an invalid law. He referred to Words and Phrases Legally Defined, Vol. Ill 2nd Edition page 363 with regard to the definition of nullity where it is stated that once a marriage is declared null and void, it means that no marriage existed. Learned Counsel also referred to Boddington vs Wisson (1951) All E.R 168 on the meaning of null and void, and submitted that the regulations that are null and void, should be treated as if they never existed.
Lastly, Mr Lule relied on Judicial Review of Administrative Action, by de Smith (1980) page 151 where the author states that if an act is ultra vires it is said to be invalid or null and void, and if it is an Act of Parliament it is void and anything done under it confers no right. Therefore, the regulations made under Act 2/99 conferred no rights on any person who canvassed as his rights had been swept away. He submitted that it follows that those who canvassed under the Act never canvassed at all in law.
It was his contention that the backdating of canvassing under Act 9/2000 was ineffectual. If it was desired to adopt the regulations, he argued, they should have been enacted under the new Act. He contended that even if the regulations could be saved, they could not operate retrospectively because they could not start operating earlier than the Act which adopted them, as they would come in force on the same day as the Act. In that event, counsel submitted, the period of canvassing would commence from the date of the Act. It was his contention that the new Act left a period of twenty days instead of two years. He submitted that even if the period of canvassing was one year that period was abridged.
On the of question whether the people did in fact canvass for public support for a political system of their choice, learned counsel for the respondents submitted that the people were excluded and deprived of the right to canvass by the authorities as averred by Hon Zachary Olum in paragraphs 4 and 5 of his affidavit.
Mr Lule contended that this affidavit was sworn to show that the environment was not conducive to canvassing, and pointed out that the learned Attorney General had conceded that political parties could not canvass except their members as individuals or in referendum Committees. Learned Counsel argued that the people did not canvass because the Act under which the canvassing took place was being challenged in Court. It was his contention that people are free to disregard a law that they are contesting.
With regard to Article 271 (2) of the Constitution, Mr Lule submitted that it has been put in place to allow freedom to canvass. He contended that before the Article was operationalised, there was a regime under Article 269 (c) where no public rallies could be held. It was his contention that Article 271 (2) was intended to free political parties for the purpose of canvassing for public support of the holding of the referendum before choosing a political system of their choice.
The submissions in respect of grounds 5 and 6 deal with part of the decision of the Constitutional Court on the third issue framed at the hearing which was "whether or not the Act was made in contravention of Article 271 of the Constitution." This issue covered matters relating to the time within which the Act was made and the procedure adopted in enacting the Act. Grounds 5 and 6 deal only with the question of the validity of the Act as it relates to the time period stipulated in Article 272 (2) of the Constitution.
Before I consider the findings of the Constitutional Court on this issue, it is pertinent to quote the relevant provisions of the Constitution. Article 271 provides in part:
"(2) Two years before the expiry of the first Parliament elected under this Constitution, any person shall be free to canvass for public support for a political system of his or her choice for purposes of a referendum.
(3) During the last month of the fourth year of the term of Parliament referred to in Clause (2) of this Article, a referendum shall be held to determine the political system the people of Uganda wish to adopt.
(4) Parliament shall enact laws to give effect to the provisions of this Article."
In dealing with this issue Okello J.A., who wrote the lead judgment held quite rightly, in my opinion, that under Article 271(3), two years before the expiry of the term of the first Parliament elected under the Constitution, any person must be free to canvass for public support for a political system of his or her own choice and that since the referendum was to be held in the fourth year of the term of that Parliament, this meant that the people of Uganda were given about one year to freely canvass before the holding of the referendum. The learned Justice of Appeal also held that Parliament was enjoined to make laws two years before the expiry of the term of the first Parliament elected under the Constitution to set the people of Uganda free to canvass for public support for the choice of a political system. He then observed,
"The undisputed evidence available shows that the impugned Act was passed on 7/6/2000. It was assented to on 9/6/2000 and was published in the Uganda Gazette on 12/6/2000. The first five years life of the first Parliament elected under this Constitution started on 2/7/96 by a Presidential Proclamation dated 30/6/96. Using a simple mathematical calculation, it is clear that the impugned Act was made during the fourth year of the life of the first Parliament that is one year before the expiry of the term of that Parliament Mr Lule submitted that the impugned Act was made in contravention of Article 271. I agree."
The learned Justice of Appeal concluded,
"It is agreed by counsel for both parties that the impugned Act is the law that was made in fulfilment of Article 271 (4). As shown above was made late, only one year before the term of the first Parliament. That was clearly in contravention of Article 271 (2) above."
As regards the issue as abridging time for canvassing, Okello, JA said,
"The undisputed evidence available however shows that the impugned Act which was made in compliance with Article 271 (4) became law on 12/6/2000 when it was published in the Uganda Gazette. The referendum intended under Clause 3 of Article 271 was scheduled to be held on 29/6/2000. That gave the period of less than one month for canvassing. However, under Section 12 (10) of impugned Act, canvassing was to stop a day before the voting day. That left only 16 days, as against one year under the Constitution, for the people of Uganda to canvass for public support to choose a political system."
The learned Justice of Appeal also held that the attempted backdating of the Act to take effect from date of 2/7/99 was invalid. He sated,
"Attempt by Parliament in Section 2 of the impugned Act to backdate the effective date of the Act to 2/7/99 was intended to stretch the time backward to comply with Article 271 (2). This did not succeed. Default had already been committed when the Act was put in place two years before the expiry of the life of the first Parliament elected under this Constitution. Backdating the effective date of the Act could not help. The Constitution wanted the law to be in place two years before the expiry of the life of the first Parliament. Section 2 of the impugned Act purported to allow Parliament to make the law outside the time prescribed by the Constitution. This had the effect of amending
Article 271 (2) of the Constitution. That is not effective without following the amendment procedures laid down in the Constitution. This was not followed here."
Other Justices of Appeal agreed with the opinions expressed by Okello, JA, Twinomujuni, JA, who wrote another detailed judgment observed on this issue:
"The issue then is whether this Act which was enacted purposely to fulfil the requirements of Article 271 did in fact comply with its requirements. I must state here categorically that by providing that the people must be free to canvass for support for referendum one clear year before it was held Article 271 set a time limit within which Parliament had to make a law to provide for holding of the referendum and also to provide for an atmosphere in which a free and fair referendum could be held. To me this means that both the law to be enacted under Articles 73(1) and 271(4) had to be in place two years before the Parliament elections of 2001 and one year before the holding of the referendum which was held on 29/6/2000.
In my judgment this Act was enacted almost three years late in contravention of the Constitution. Without both laws there was no way canvassing for public support could start. The Referendum Act was needed to give guidelines on how the canvassing would be done, how the elections would be conducted, how the referendum questions(s) would be framed it (them) etc. Moreover, it was necessary for the people to know what the referendum questions would be before canvassing could start.
The Political Parties and Organisations Act 2002, which was to be enacted under the authority of Article 73, had to be in place in order to free political parties which had been in bondage since 1995. In my judgment this Act was enacted almost
24
three years late in contravention of the Constitution. Without that law, a conducive atmosphere for holding a free and fair referendum as required by Articles 61 (a), 69 and 271 (2) did not exist. This is why I believe that both these Acts should have been in place at least one year before the referendum of 29/6/2000 was held. They should have been enacted between October 1995 and June 1999. Therefore the enactment of the Referendum Act 2000 on 9th June 2000 only 20 days before the Referendum contravened the requirements of Article 271 in that respect."
The learned Justice of Appeal also held that Section 2 of the Act which made the effect of the Act retrospective for one year did not cure the defect because Parliament could not validly pass a law that takes away a right or freedom guaranteed under the Constitution, in this case the right to a free and fair referendum. Secondly, the learned Justice of Appeal held that to the extent that Section 2 purported to bridge the period allowed by Article 271 to canvass for support from 12 months to only three weeks, it would have the effect of varying the meaning of that Article, and would be tantamount to amending it by implication or infection within the meaning of Article 258, without complying with Chapter 18 of the Constitution, and this would be unconstitutional on the authority of Paul K Ssemogerere and 2 Others vs. Attorney General. Constitutional Appeal No.1 of 2002 (SC) (unreported).
I respectfully agree with the decision of the learned Justices of Appeal that the impugned Act was made in contravention of Article 271 (2).
Section 2 of the impugned Act (No 9/2000) which was assented to on 9th June 2000 was backdated as follows:
"This Act shall be deemed to have come into force on 2nd July 1999."
Section 29, which preserved previous laws and actions, provided:
"Notwithstanding the provisions of any other law, any action taken or purported to have been taken in good faith, and any statutory instrument made or purported to have been made in good faith before the publication of this Act in the gazette for the purposes of the referendum required to be held under Article 271 of the Constitution, shall be deemed to have been taken or made under this Act."
It must be noted that the first Act made under Article 271 (2) was the Referendum and Other Provisions Act 1999 (Act 2 of 1999). This Act was made on 3rd July 1999 but commenced on 2nd July 1999. The long title to the Act stated:
"An Act to make provision for the holding of referenda in pursuance of the provisions of Articles 74 and 76 of the Constitution; to cater for any other referendum required to determine any matter; to cater for a change in the political system by petition of district councils and a resolution of Parliament under clause (2) of Article 74 of the Constitution; to repeal and replace the Referendum Statute, 1994 and to provide for other matters connected with or incidental to the foregoing."
Section 26(4) provided that "On or after the 2nd day of July 1999, any person shall be free to canvass for support for a political system of his or her choice for the purpose of a referendum under this section." Section 26(1) provided that "the Commission shall for the purpose of clause (3) of Article 271 of the Constitution appoint and publish in the Gazette, a date falling within a period 3rd day of June to 2nd July in the year
2000 on which a referendum shall be held to determine the political system the people of Uganda wish to adopt."
On 22nd February 2000, the Referendum Regulations 2000 (SI 2000 No. 4) were made under section 30 (1) of the Referendum and other Provisions Act 1999. The regulations were to apply in relation to the conduct of the referendum for the change of political system under Article 271. The regulations provided for freedom to canvass for support for any side in the referendum, formation of referendum committees, freedom of expression and information, freedom of assembly, freedom on the media, etc.
The constitutionality of Act 2/99 was challenged in the Constitutional Court in the case of P. K. Ssemoaerere and Another V. Attorney General. Constitutional Petition No. 3 of 1999, on the ground that the Act had been passed by Parliament without a quorum. The Court declined to hear the petition on the ground that it could not inquire into the internal workings of Parliament. The petitioners appealed to this Court in Constitutional Appeal No 1 of 2000, and the Court allowed the appeal holding that the Constitutional Court had jurisdiction to entertain the petition. The Constitutional Court heard the petition in June 2000, and delivered its judgment on 10 August 2000 allowing the petition and holding that Act 2/99 was made in a manner that contravened the Constitution and was null and void.
However, before the petition challenging Act 2/99 was disposed of, the impugned Act 9 of 2000 was enacted allegedly in anticipation that Act 2/99 might be struck down, and yet the referendum had to be held within the period stipulated by the Constitution. The impugned Act was specifically made under article 271 and its long title states,
"An Act to make provision for holding of the referendum required to be held under Article 271 of the Constitution to determine the political system the people of Uganda wish to adopt and for other related matters."
I agree that the impugned Act was specific in dealing with Article 271(2) while Act 2/99 was a general one dealing with Article 271 (2) and other matters. The impugned Act was clearly made in anticipation that Act 2/99 might be struck down by the Constitutional Court, as there was controversy over the procedure under which Parliament enacted it. Whether the impugned Act was made in good faith or not is not the issue, but whether it was validly made. This raises the question of constitutionality, not political expedience or public interest.
Before I consider the validity of the impugned Act, I should like to dispose of the submissions made by the learned Attorney General. He submitted that Act 2/99 was in force when the referendum on political systems was held. I agree. But the Act was existing under challenge in Court and was subsequently declared null and void, and therefore deemed to have ceased to exist from the date of its enactment. Its status was as if it had not been made, as Mr Lule submitted.
Mr. Lule further contended that the canvassing for public support for a political system of choice, done under the annulled law was no canvassing in the eyes of the law. Any act or regulation made under the previous law could only be saved if the law under which they were made was valid.
The respondents alleged that they were prevented from canvassing and that they did not have to canvass under the law which they were challenging in Court. Whether they canvassed or not, the legal period for canvassing started when the impugned Act was made. That Act left a period of less than one month for canvassing, and therefore the period of canvassing of one year provided under Article 271 (2) was illegally abridged.
The Constitutional Court observed that the Political Organisations Act 2000 should have been enacted before the referendum was held. While that might have been desirable, I am unable to read that requirement in Article 271 (2) or the repeal of Article 269 despite its restrictive effects. What was required under Clauses (2) and (4) of Article 271 was a law providing an enabling legal and political environment of freedom and fairness for holding of the referendum. An attempt was made by Parliament through Act 2/99 and the impugned Act to comply with this requirement, but the attempt failed because both laws were declared null and void.
The Court also held that the backdating of the impugned Act had the effect of amending Article 271 (2). That is not entirely correct as an ordinary Act of Parliament cannot amend any provision of the Constitution. Only a constitutional amendment can have such effect. The purported amendment, if any, must have therefore failed. The Act was only inconsistent with and contravened Article 272 (2).
With regard to the validity of the impugned Act, it is clear that under its Transitional Provisions in Chapter 19, the Constitution requires Parliament under Article 271, to enact laws to give effect to the provisions in that Article. The laws to be enacted were to ensure, inter alia, (a) that two years before the expiry of the term of the first Parliament elected under the Constitution any person would be free to canvass for public support for a political system of his or her choice for purposes of a referendum, as provided in Clause 2 of that Article, and (b) that during the last month of the fourth year of the term of the first Parliament, a referendum would be held to determine the political system the people of Uganda wished to adopt.
The term of the first Parliament commenced on 2nd July 1996 and expired on 1st July 2001. The time by which every person was to be free to canvass for a political system of his or her choice, i.e., two years before expiry of that term, as provided in Article 271 (2), was 2nd July 1999, and the last month of the fourth year of the said term was June 2000. According to its long title, the Referendum (Political Systems) Act No. 9 of 2000 was enacted "to make provision for the holding of the referendum required to be held under Article 271". The passing of the Act on 7th June 2000, therefore, was in contravention of, and inconsistent with Article 271 (2) because, contrary to the time prescribed in that Article, the Act was passed long after it was due, and it sought to abridge the period for canvassing for the purposes of the referendum. The abridgement of time for canvassing by the impugned Act which was unconstitutional, was an attempt to amend or vary the Constitution, which failed because the Act was not a Constitutional amendment Act nor were the prescribed procedures under the Constitution for amending the Constitution complied with. Accordingly, I agreed that grounds 5 and 6 should also fail.
Grounds 9,10 and 11: Validity of Procedure in Passing the Act:
The three grounds are stated as follows:
"9. The learned Judges of the Constitutional Court erred in law and in fact in holding that a Committee of the Whole House is not a Standing Committee of Parliament.
10. The learned Judges of the Constitutional Court erred in law and in fact in holding that the passing of the Referendum (Political Systems) Act 2000 contravened Article 90 of the Constitution. 11. The Learned Judges of the Constitutional Court erred in law and in fact in holding that the voting method adopted by Parliament in passing the Referendum (Political Systems) Act 2000 contravened Articles 89 of the Constitution."
Arguing grounds 9 and 10 together Hon Amama Mbabazi, the learned Attorney General, pointed out that the existence of the Committee of the Whole House was not disputed. He observed that there was a split decision on this matter, in the Constitutional Court and the majority held that the Committee of the Whole House was not a Standing Committee. Hon. Amama Mbabazi urged this Court to adopt the reasoning of the minority decision by Engwau, JA who held that a Committee of the Whole House was as good as any Standing Committee, and Kitumba, JA who held that although the Committee of the Whole House is not established by the
Constitution but by Rule 101 of the Rules of Parliament, it was a permanent Standing Committee.
The learned Attorney General submitted further that the characteristics of a Standing Committee are set out in Article 90 (2) (a) of the Constitution and that the Committee of the Whole House fits the qualifications laid down in that Article, namely that, the members of Standing Committees shall be elected from among members of Parliament during the first session of Parliament.
Hon Amama Mbabazi referred to evidence sworn by the Rt. Hon Speaker of Parliament to the effect that a Committee of the Whole House is a Standing Committee. He stated that by practice a Committee of the Whole House considered Bills.
The learned Attorney General further submitted that the power of Parliament to legislate is contained in Article 79 of the Constitution and what followed thereafter were forms and procedure of exercising that power. It was his contention that to say that Article 79 was infringed because a Standing Committee had more members than is required, is a mere technicality which does not go to the root of the matter: He submitted further that Article 126 requires Courts to administer justice without undue technicalities and the majority applied technicalities to defeat justice. He concluded by submitting that the failure to refer the Bill to a Standing Committee was not fatal to the impugned Act.
Mr Joseph Matsiko, the learned Ag. Director of Civil Litigation handled ground 11, which dealt with the method of voting in Parliament when passing the Act. He submitted first that the
Constitutional Court erred in holding that the passing of the Act by the voice method of voting by "eyes" and "noes" was unconstitutional because this matter was not one of the grounds relied on by the petitioners in the pleadings to challenge the validity of the impugned Act.
Secondly, he submitted that even if the voting method had been pleaded as a ground for invalidating the Act, that method was valid and constitutional for passing ordinary legislation which requires a simple majority to pass a Bill. It was his view that the method would be unconstitutional if it was used to pass a constitutional amendment, which requires two thirds of Members of Parliament to pass it. He cited our decision in the case of P K Ssemoaerere and Two Others vs. the Attorney General Constitutional Appeal No.1 of 2000 (SC) as authority in support of his submission.
In reply, Mr Lule, learned counsel for the respondents, submitted that Parliament is required to appoint Standing Committees and other Committees for efficient discharge of its functions; and that the Constitution regards lack of such Committees as inefficiency of Parliament in performance of its functions. He contended that under Article 90 (2) the total number of members of any Standing Committees must be elected from among Members of Parliament during the first session of Parliament, must be fewer than the total number of Members of Parliament. He argued that the framers of the Constitution knew that there would be full Members of Parliament but they did not entrust them with this responsibility of a Standing Committee.
Mr Lule further contended that there is no evidence that there was an election of members of the Committee from Members of Parliament. It was his submission that unless it was shown that a Committee of the Whole House was elected from among Members of Parliament, it could not be a Standing Committee. He submitted that although there was nothing to prevent any Committee to discuss a Bill, if there is no Standing Committee to discuss the Bill, that would be unconstitutional. Learned counsel contended further that Article 79 (1) is subject to Article 90 as regards to procedure.
Referring to the evidence adduced with regard to the question of the election of Standing Committees, Mr Lule first referred to the answer to the petition where in paragraphs. 2 and 3, it was averred that Article 90 (1) and (3) does not require mandatory reference of Bills to Standing Committees. He also referred to the accompanying affidavits of Hon E K Ssekandi, and of Hon Omara Atubo who raised the issue of lack of Standing Committees while discussing the Bill, and pointed out that there was a clarification from Hon James Wapakhabulo that there was a perpetual and permanent Committee of the Whole House, but there was no mention of the existence of an elected Standing Committee.
Mr Lule concluded his submissions on grounds 9 and 10 by contending that the Committee of the Whole House was not a Standing Committee and therefore the Bill was not referred to a Standing Committee because there was none. The procedure laid down for passing a valid Act of Parliament was not complied with. Whether this was a mere technicality of numbers or not, it could not be ignored because it was a Constitutional requirement. It was his submission that everything in the Constitution is mandatory, and there is nothing which is merely directory.
With regard to ground 11, Mr Lule argued that the question of the method of voting in Parliament was raised in the Constitutional Court because there was attached to the petition a copy of Hansard where the usual method of "putting the question" was recorded by the Speaker. Although the proceedings in Hansard do not show which members voted and how, learned counsel submitted, the Constitutional Court was entitled to raise on their own motion and with the assistance of his submissions, the issue of anomaly in the procedure adopted in passing the Bill.
I agree that the existence of a Committee of the Whole House was not seriously challenged. What was challenged was whether the Committee of the Whole House was a Standing Committee within the meaning of Article 90(2) (a) of the Constitution, and whether it was performing the functions of a Standing Committee. In order to determine whether the Committee of the Whole House is a Standing Committee, it is necessary to examine its composition, election and functions within the provisions of the Constitution. The majority of the Constitutional Court held that the Committee of the Whole House was not a Standing Committee. Okello JA with whom the majority agreed, said,
"I think that Article 90(2) (a) is quite clear as to what is a Standing Committee of Parliament. It is constituted during the First Session of Parliament and its members are selected from among members of Parliament. This differentiates Standing Committee from the Committee of the Whole House. The latter is not specifically mentioned in Article 90
(1) of the Constitution but may be covered under "and other Committees necessary for the efficient discharge of its functions" in that Article."
The learned Justice of Appeal distinguished the functions of the two Committees as follows:
"The functions of the two Committees are also different. The functions of the Standing Committees are set out by Article 90 (3) of the Constitution. The functions of the Committee of the Whole House are not spelt out in the Constitution. Under rule 101 of the Rules of Procedure of the 6th Parliament a Bill is referred to a Standing Committee after the first reading. It moves to the Committee of the Whole House only when the second reading is passed."
He concluded,
"in view of the above I agree with Mr Lule that a Standing Committee is not the same with the Committee of the Whole House. So when the Constitution stipulates that Bills be referred to an appropriate Standing Committee, Parliament cannot substitute a Committee of the Whole House as a Standing Committee. Failure to refer the Bill to a Standing Committee in the instant case amounted to failure to comply with the procedures laid down in the Constitution.
The learned Justice quoted as authority for his view, the decision of this Court in Paul K Ssemogerere and 2 Others (supra) where this Court struck down the Constitutional Amendment Act No 13 of 2000, for being unconstitutional because certain steps in the legislative process were not followed. Particularly the opinion of Kanyeihamba, JSC was quoted where he said,
"It can never be over emphasised that whereas Constitutional provisions may be amended constitutionally, they can never be waived at all."
Indeed the learned Justice of Appeal concluded that since Article 90 (2) (a) requires all Bills to be discussed by a Standing Committee constituted under Article 90, that cannot be waived and a Committee of the Whole House substituted for a Standing Committee. To that extent, he concluded, "I would find that Parliament did not follow the procedure laid down in the Constitution in passing the impugned Act."
Twinomujuni JA who was among the majority members of the Court, who agreed with Okello JA, gave the following reasons why a Committee of the Whole House cannot pass as a Standing Committee:
"(i) Article 90 (2) (a) provides that Members of Standing Committees shall be elected from among Members of Parliament during the first session of Parliament. It is common sense that a Committee of the Whole House is composed of All Members of Parliament. The two Committees are not the same thing.
(ii) Even the Rules of the 6th Parliament recognised rightly in my in view, the distinction between the two. Rule 101 provides that after a Bill has been read for a second time, it shall be referred to a Committee of the Whole House. Rule 102 provides that the Committee shall not discuss principles of the Bill, but only its details. This is quite different from the functions bestowed on Standing Committees by Article 90 (3). Rule 99 (5) provides that the functions of the
Committee be exercised as soon as the Bill has been read the first time."
The learned Justice attempted to explain the confusion about the roles of Standing Committees and Sessional Committees brought about by the Constitution and Rules of Parliament and suggested that the Committees mentioned in Rule 118 appear to be more suited to perform the functions under Article 90(3) and Rule 119 of the Rules, and should have been called Standing Committees and not Sessional Committees.
Twinomujuni JA then concluded:
"The framers of the Constitution made it very clear that a Standing Committee cannot be the same thing as a Committee of the Whole House. It provides that a Standing Committee shall be elected from among Members of Parliament during its first session. How then can such a Committee be the same thing as the Committee of the Whole House where every Member of Parliament is a Member? I have no doubt that Parliament has the power to constitute itself as a Committee of the Whole House as one of "other Committees" mentioned in Article 90 (1) but such a Committee of the Whole House cannot perform the functions mentioned in Article 90 (3) as those are exclusively conferred on Standing Committees. It follows therefore that in passing the Referendum (Political Systems) Act, 2000, Parliament Committed a fatal error by failing to submit the Bill to Standing Committee of the House."
On the other hand, Engwau, JA, held that the Committee of the Whole House was one of the Standing Committees of Parliament which are necessary for the efficient discharge of its functions. He stated,
"As Parliament is empowered to appoint a Committee of the Whole House as one of its Committees in effect was as good as a Standing Committee necessary for efficient discharge of the functions of Parliament. The Committee of the Whole House was therefore, in my view one of the Standing Committees. It carried out the same functions as any Standing Committee would do. It carried out those functions in terms of Rules 105 (1), 106 (1) and 107 of the Rules of Procedure of the 6th Parliament of Uganda as envisaged by Article 90 (2) (b) of the constitution. The rules of the constitution followed by Parliament in enacting the Referendum (Political Systems) Act 2000, in my view, did not contravene Article 90 (1) and 3 (a) and (e) of the Constitution, and to that extent is not null and void."
Kitumba, JA held that the Committee of the Whole House was a permanent Standing Committee. She concluded,
"I am of the considered view that Parliament had the powers to have by its rules the Committee of the Whole House as a permanent \Standing Committee. The evidence shows that on 7th June, the 6th Parliament was first beginning its session and other Standing Committees had not yet been selected. Parliament resorted to its permanent Standing Committee of the Whole House to discuss the Bill. The evidence from the Hansard shows that the bill was referred to the Committee of the Whole House after its first reading. It was duly discussed in the Committee and a report made to Parliament. I am unable to fault the procedure followed."
Article 90 of the Constitution provides for the appointment and functions of Committees of Parliament. Clauses (1) and 2 provide for the appointment and composition of Committees of Parliament as follows:
"(1) Parliament shall appoint Standing Committees and other Committees necessary for the efficient discharge of its functions.
(2) The following shall apply with respect to the composition of the Committees of Parliament-(a) the Members of Standing Committees shall be Elected from among the Members of Parliament, (b) the rules of procedure of Parliament shall prescribe the manner in which the members and chairpersons of the Committees are elected."
The functions of Standing Committees are spelt out in Clause (3) of Article 90 to include the following:
"(a) to discuss and make recommendations on all Bills laid before Parliament.
(b) to initiate - any bill within their respective areas of competence; (c) to assess and evaluate activities of Government and ther bodies; (d) to carry out relevant research in their respective fields; and (e) to report to Parliament on their functions."
The Constitution does not specifically establish a Committee of the Whole House, but Article 90(1) empowers Parliament to appoint Standing "and other Committees necessary for the efficient discharge of its functions." The Committee of the Whole House was established by Parliament under Rule 101 of the Rules of Procedure of the 6th Parliament of Uganda. The rules provide that after a bill has been read for the second time, it shall be referred to the Committee of the Whole House to discuss its principles and not its details. It is common ground that the Committee of the Whole House is a permanent Committee which consists of all Members of Parliament. These features contrast sharply with the characteristics of a Standing Committee spelt out in Article 90 (2) (a) whose members must be elected from amongst the Members of Parliament, and their election must be made during the first Session of Parliament. No such election was ever held and no such Standing Committee was formed. Even the functions of the two Committees appear to be different. Consequently, I would hold that the Constitutional Court was correct in holding that the Committee of the Whole House is not a Standing Committee. Ground 9 should, therefore, fail.
The next question is whether failure to refer the Bill to a Standing Committee rendered the procedure for passing the impugned Act invalid. It is clear from the provisions of Article 90 (1) that Parliament is empowered to establish Committees necessary for the efficient discharge of its functions. Parliament did establish the Committee of the Whole House to discuss bills, among other functions. The Bill for the impugned Act was discussed by the Committee of the Whole House and not by a Standing Committee which was not in existence. In my view, Parliament had power to refer the Bill to the Committee of the Whole House for discussion or to any other Committee, for the efficient discharge of its functions.
Therefore the failure of Parliament to refer the Bill to a Standing Committee did not render the procedure for passing the Bill invalid. Secondly, Parliament has power under Article 79 (1) to make laws on any matter for the peace, order and development and good governance of Uganda. This mandate has sometimes been referred to as "Legislative Sovereignty" to make laws. It is well settled that this power must be exercised in accordance with the Constitution. However, there is nothing in Article 90 or any other provision of the Constitution which makes it mandatory for Parliament to refer a Bill to a Standing Committee or any other Committee before exercising that power. In my view, the provision in Article 90 (3) that makes it a function of Standing Committees to discuss and make recommendations on all Bills laid before Parliament, only empowers Standing Committees to do so in the course of assisting Parliament to discharge its functions efficiently. That provision cannot be construed as a restriction on or as providing a condition precedent for Parliament in the exercise of its legislative power. Therefore, the Constitutional Court erred in holding that the passing of the impugned Act contravened Article 90 by reason of the omission to refer the Bill for that Act, for scrutiny and recommendations by any Standing Committee. Accordingly ground 10 should succeed.
It remains to consider whether the Constitutional Court erred in holding that the voting method adopted by Parliament in passing the impugned Act contravened Article 89 of the Constitution.
In his lead judgment, Okello, J. A., said,
"Thirdly the voting method. Article 89 is very clear on the method of voting. A bill is considered passed when it is supported by a majority of members of Parliament present and voting. In Paul Ssemogerere and 3 Others V. Attorney General. Constitutional Appeal No. 1 of 2002, the Supreme Court considered this article and contrasted it with articles 259(1) and 261 as to the mode of ascertaining majorities for effecting Constitutional amendment. In that case voting was by shouts of "Ayes" or "Noes."
The Supreme Court (Kanyeihamba, JSC) said:
'In my view for Constitutional amendment, the voting in Parliament should be by head count of members in favour of and against the amendment at the second and third readings by lobby, division or such other mode as can ascertain that the supporters of the amendment are two thirds of the total number of members of Parliament.'"
The learned Justice of Appeal then concluded,
"In the instant case, the Hansard which was attached to the affidavit of the Rt. Hon. E. K. Ssekandi, Speaker of Parliament shows merely that "Question put and agreed to." It does not show how the majorities were determined. This is clearly contrary to what is stated in Article 89. This article requires the majority to be ascertained by head count or other methods that can ascertain majorities."
Other Justices of Appeal agreed with the opinion of Okello J. A. that the voting procedure adopted to enact the Act was unconstitutional. The procedure of voting in Parliament is provided for in article 89 of the Constitution. The article states,
"(1) Except as otherwise prescribed by this Constitution or any other law consistent with this Constitution, any question proposed for decision of Parliament shall be determined by a majority of votes of members present and voting.
(2) The person presiding shall have neither an original nor a casting vote, and if on any question before Parliament the votes are equally divided, the motion shall be lost."
The Constitutional Court took the view that there must be physical counting of votes to establish the majorities in Parliament, and that the procedure of voting by the shouts of "Ayes" and "Noes" employed in the passing of the impugned Act was unconstitutional. The Constitutional Court relied on our decision in the case of P. K. Ssemogerere & 2 Others V. Attorney General (supra) and quoted an extract from the judgment of my learned brother, Kanyeihamba JSC.
However, it seems that the Constitutional Court misconstrued our decision in the Ssemogerere case (supra). That case concerned the procedure for passing a Constitutional amendment and the opinion of Kanyeihamba JSC relied on by the Constitutional Court clearly refers to Constitutional amendments, where our view was that the procedure of voting by the shouts of Ayes or Aloes was unsuitable in determining large majorities. We did not hold that such a procedure was unconstitutional in passing ordinary legislation, where simple majorities are required.
Indeed in my own judgment in the Ssemogerere case (supra) I observed,
"In my opinion, the procedure provided in Article 257 A does not apply to the amendment of the Constitution where a two-thirds majority of all members of Parliament with voting rights is required to pass such amendment. The procedure of voting by "Ayes" and "Noes" is incapable of providing accuracy and certainty that the necessary numbers of members of Parliament required to pass such important legislation have been obtained. The procedure may be applicable in deciding questions where only simple majority of members of Parliament present and voting is required in non-contentious matters, as provided under Article 89 (1) of the Constitution." (Underlining supplied)
Article 257 A had been introduced in the Constitution by the Constitution (Amendment) 2000 to validate Acts and decisions passed or taken using the procedure of voting by voices of "Ayes" and "Noes". My view was that such a procedure was inappropriate in passing Constitutional amendments but could be used in passing bills, which required simple majorities. Other members of the court agreed with that view.
In the present case, the procedure of "Question put and agreed to" and voting by "Ayes" or "Noes" was used in passing the Bill for the impugned Act. The Bill was not a Constitutional amendment. The procedure used was in my view Constitutional and valid. Accordingly, the Constitutional Court erred in holding that such procedure contravened Article 89 of the Constitution. I therefore, agreed that there was merit in ground 11 which succeeded accordingly.
Grounds 4, 7 and 8: Validity of the 2000 Referendum and Adoption of Political System:
Grounds 4, 7 and 8 are as follows:
"(4) The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum which was held on 29th June 2000 was invalid.
(7) The learned Judges of the Constitutional Court erred in law and in fact in holding that the 2000 Referendum of choice of political systems was held in contravention of Article 69 of the Constitution. (8) The learned Judges of the Constitutional Court erred in law and in fact in holding that the people of Uganda in a referendum held on 29th June 2000 never adopted a political system under Article 69 of the Constitution."
Arguing the three grounds together, Hon. Mbabazi submitted that the Constitutional Court was not petitioned on the invalidity of the referendum, to determine whether the holding of the referendum on 29th June 2000, contravened any provision of the Constitution. Nor was the Constitutional Court asked to determine whether the people adopted a political system of their choice. Hon Mbabazi contended that this submission is supported by the fact that the referendum was held after the petition was filed and therefore the petitioners could not have asked the Constitutional Court to declare invalid a referendum which had not yet been held. The learned Attorney General submitted that the Constitutional Court therefore erred in fact and in law in making an explicit declaration invalidating a referendum held, after the petition was filed without amending the petition.
Hon Mbabazi further contended that no where in the petition did the petitioners seek any declaration from the Constitutional Court to nullify the referendum. 11 was his submission that the prayers in paragraph 3 of the petition only sought declarations to nullify the impugned Act. He contended that the Constitutional Court had therefore, no authority to declare the referendum invalid when that Court had not been asked to do so.
In support of his submissions, Hon Mbabazi referred us to rule 13 of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (LN No. 4 of 1996), Civil Procedure Rules, Order 6 r 1, and The Code of Civil Procedure, 6th Ed. 1957, published by the All India Reporter Ltd, which deal with contents of judgment, and which emphasise that a decision of the Court cannot be based on grounds outside the pleadings. The learned Attorney General also cited the case of Captain Harry Gandy vs. Caspair Air Charter Ltd (1955). EACA 139 where the Court of Appeal for Eastern Africa held that the trial Judge erred in reaching a decision on a ground which had not been pleaded in the counter claim, nor placed on record by amendment.
In conclusion, Hon. Mbabazi submitted that the learned Justices of the Constitutional Court ignored the fact that the invalidity of the referendum was not pleaded nor placed on record by amendment and therefore, erred, when they went ahead to hold that the referendum was held in contravention of Article 69, and that the people of Uganda did not adopt a political system of their choice.
In reply, Mr Lule, learned Counsel for the respondents, submitted that the issue of the invalidity of the referendum under Article 69 was raised in the pleadings under paragraph 2(e) of the petition which stated,
"That the omission by Parliament to enact the Political Organisations Bill under Article 269 allowing political party activities has so thoroughly corrupted the democratic process that the fundamental right to free and fair elections cannot be provided in the referendum in contravention of Article 69 of the Constitution."
Mr Lule contended that the issue was also argued in the Constitutional Court under issue No.4 where he had submitted that Article 69 had to be read together with Article 269 with the effect that until a law on political organizations was put in place people subscribing to multiparty politics could not canvass and only views of one side, the movement, could be heard. Learned counsel contended that without such a law in place, the choice of a political system under Article 69 could not be made. It was his submission that the referendum had also contravened Article 269.
In considering the fourth issue whether the 2000 referendum was validly held under Article 69, the Constitutional Court first dealt with the submission made by the learned Solicitor General challenging the competence of the issue. The learned Solicitor General had submitted in that Court, like the learned Attorney General did in this Court, that the issue was misconceived as it did not arise from the pleadings nor were the results of the referendum challenged.
After referring to paragraph 1(e) of the Petition and paragraph 1 (e) of the respondent's answer, Okello J.A, said,
"There can be no doubt therefore that this issue arose from the pleadings as shown above. Had the learned Solicitor General looked at the pleadings more closely he would have realized that his criticism was without base. The issue is not at all misconceived. It is properly framed. It is challenging whether the holding of the referendum on 29/6/2000 before the laws regulating the activities of Political Organisations were made in accordance with Article 269 was inconsistent with Article 69."
The other members of the Court agreed with the opinion of Okello J.A on this point.
I am unable to fault this finding. On the face of it, the question whether the referendum held on 29th June was valid or invalid was not expressly raised in the petition, which was filed before the referendum was held, nor were the pleadings amended at any time subsequently to include it. However, it was implicit in the pleadings in paragraph I (e) of the petition wherein it was alleged that the omission to enact a law allowing political party activities would inhibit the holding of a free and fair referendum and thereby contravene Article 69. This led to the framing of the fourth issue as follows:
"(d) Whether or not the absence of a law regulating the activities of a Political Organizations as provided under Article 269 of the Constitution contravened Article 69 by perpetuating a political environment under which the people of Uganda could not make a free and fair choice of the political system as to how they should be governed."
Clearly in answering this issue, it was inevitable to consider if the referendum held on 29th June 2000 contravened Article 69.
Accordingly, I would hold that although it was not expressly pleaded or framed as an issue, the question was properly before the Constitutional Court, and that Court was not in error to consider and make a decision on it.
The substantial issue the Constitutional Court had to consider was whether the 2000 referendum was validly held. Issue No.4 was not expressed in the clearest of terms. Commenting on how it had been framed, Twinomujuni JA, said,
"The issue is framed in a wordy and round about fashion as it seems to move around the question it seeks to raise. If I understand it well and let me be permitted to rephrase it accordingly it means this:
"Could a referendum held to choose a political system of people's choice be free and fair as required by Articles 69 and 271 when it is carried out when Article 269 of the Constitution and Section 12 of the Act were in force?"
Be that as it may, the learned Justice of the Constitutional Court addressed the issue and held that the holding of a referendum contravened Article 69 since no law had been made under Article 73 to free political parties from the restrictions imposed by Article 269.
Dealing with Article 69(l), Okello J.A., in his lead judgment, said that it was clear that Article 69(l) gives the people of Uganda the right to choose and adopt "through free and fair elections or referenda" a political system under which they wish to be governed. After referring to the submission of both counsel and the relevant provisions of the law, he concluded:
"In the instant case, the evidence shows that the referendum to choose a political system was held on 29/6/2000. This was done before the Political Parties Organisations Act No 18 of 2002 came into force. That Act came into force on 17/7/2002. That meant that when the referendum was held, shackles with which Article 269 bound the Political Organisations were still on. Without removing the bondage, the free and fair elections or referenda provided for under Article 69 cannot be achieved. They remain illusory. The referendum that was held on 29/6/2000 when the Political Organisations were still bound by the shackles placed on them by Article 269, could not have been free and fair because the people who subscribed to political philosophies different from that of movement did not fully canvass their views. The impugned Act with its shortcomings was not enough. There was need to pass a law under Article 73 to remove the bondage placed by Article 269 before h olding the referendum on 29/6/2000. The referendum was therefore held in contravention of Article 69."
The other Justices of Appeal agreed with the conclusion of Okello, J.A. On his part, Twinomujuni, J. A, stated that at the time when the people were being asked to choose between movement and multiparty political systems, "the parties themselves were in a cooler and could not say anything in their defence." He concluded,
"I pointed out earlier in this judgment that a law to be enacted under Article 73 of the Constitution to regulate political organizations was a must at least one year before the 2000 referendum. On the enactment of the law, Article 269 was to expire. This means that parties were to be free within the meaning of Article 29 of the Constitution. The law was never enacted. As a result the referendum was held under the regime of Article 269. When the Political Parties and Organisations Act 2002 was finally enacted more than three years too late, it incorporated Article 269 wholesale in its sections 18 and 19. Those Sections have already been nullified in the case of Dr. Paul K Ssemooerere and 5 Others vs Attorney General. Constitutional Petitions NO. 5 of 2002. It is difficult to understand why the Parliament of Uganda has since 2/7/1999 persistently denied the people of Uganda the right to hold free and fair election or referenda in contravention of Articles 1 (4), 61 (a), 69 (1) and 271 (2) of the Constitution. In my judgment failure to enact a law under Article 73 adversely affected the referendum of 29/6/2000."
The effect of Article 269 was re-emphasized by Mpagi Bahigeine J.A, who stated:
"I can hardly agree with the Solicitor General that despite Article 269 people had been free to campaign all along before the passing of the Act. It is in black and white that this could not have been possible because Article 269 still firmly maintained a lid on such activities, excepting the movement organization which is in contravention of Article prohibiting the formation of one party state in Uganda, as was unanimously held by this Court in Constitutional Petition No. of 2002, Paul K Ssemogerere and 5 Others vs. Attorney General of Uganda. The result was that the people were unjustifiably deprived of their rights to freely associate exchange and express political ideas and aspirations. They were incapacitated politically as they could not campaign to effect their political destiny in one way or another."
Article 69 of the Constitution provides for the forms of political systems and the right of the people of Uganda to adopt a political system of their choice as follows:
"(1) The people of Uganda shall have the right to adopt a political system of their choice through free and fair elections or referenda.
(2) The political systems referred to in clause (1) of this article shall include-
(a) the movement political system;
(b) the multiparty system, and
(c) any other democratic and representative political system."
Under Article 271(1), the first public elections under the Constitution were to be held and indeed were held under the Movement Political System. The first opportunity for the people of Uganda to adopt a political system of their choice was given by Article 271 (3), which provided,
"During the last month of the fourth year of the term of Parliament referred to in clause (2) of this Article, a referendum shall be held to determine the political system the people of Uganda wish to adopt."
The 2000 Referendum was held in compliance with this Constitutional requirement which was mandatory.
The regulation of political parties is provided for by Article 73 of the Constitution as follows:
"(1) Subject to the provisions of this Constitution but notwithstanding the provisions of Article 29, and Article 43 of this Constitution, during the period when any of the political systems provided for in this Constitution has been adopted, organisations subscribing to other political systems may exist subject to such regulations as Parliament shall by law prescribe.
(2) Regulations prescribed under this Article shall not exceed what is necessary for enabling the political system adopted to operate."
Before such a law regulating political organisations was made, some of their activities were restricted by Article 269, which provided,
"On the commencement of this Constitution and until Parliament makes laws regulating the activities of political organisations in accordance with Article 73 of this Constitution, political activities may continue except -
(a) opening and operating branch offices; (b) holding delegates conferences; (c) holding public rallies; (d) sponsoring or offering a platform to or in any way campaigning for or against a candidate for any public elections; (e) carrying on any activities that may interfere with the Movement Political System for the time being in force."
The learned Justices of the Constitutional Court appear to have taken the view that without repealing Article 269, to remove the specified restrictions on activities of political organisations, no free and fair elections or referenda could be held. They also took the view that the Political Party and Organisations Act ought to have been enacted before the referendum was held. These views though appearing plausible, had no legal basis.
Article 271 did not refer to either Article 73 or 269. The regulation of political organisations was necessary but it was a separate issue from the regulation and the conduct of the referendum. Indeed, Parliament was empowered by Article 271 (4) to enact laws to give effect to the provisions relating to the holding of the referendum, among other things.
The learned Justices of the Constitutional Court appear to have based their decision mainly on the legal regime relating to political organisations prevailing at the time the referendum was held without realizing that the determination of the validity of the referendum involved consideration of both questions of law and fact, in order to decide whether the referendum was free and fair. It is also important to remember that the challenge to the validity of the referendum was anticipatory or speculative since the referendum had not been held and its results challenged and inquired into to determine whether it was free and fair.
In his lead judgment, Okello J. A., pointed out that the term "free and fair elections or referenda" is not defined in the Constitution. He referred to Uganda: Constitutionalism at Cross Roads, by Peter Walubiri (1999) at page 312, where the author suggests that "you have to look at the totality of the exercise and make a value judgment."
The learned Justice of Appeal then observed:
"One therefore must look at the entire elections or referendum exercise to determine the question of freedom and fairness. Nonetheless, sufficiency of time for all stages in the exercise, level grounds, fairness and transparency are some of the factors that constitute free and fair elections or referenda."
I entirely agree with the learned Justice of Appeal. His remarks are in line with the view I expressed in Col. (Rtd) Dr. Besigye Kizza Vs. Museveni Yoweri Kaguta Election Petition No. 1 of 2001, (SC) where I said,
"To ensure that elections are free and fair, there should be sufficient time given for all stages of the elections, nominations, campaigns, voting and counting of votes. Candidates should not be deprived of their right to stand for elections and the citizens to vote for candidates of their choice through unfair manipulation of the process by electoral officials. There must be a leveling of the ground so that the incumbents or government Ministers and officials do not have an unfair advantage. The entire electoral process should have an atmosphere free of intimidation, bribery, violence, coercion or anything intended to subvert the will of the people. The election procedures should guarantee the secrecy of the ballot, the accuracy of counting and the announcement of the results in a timely manner. Election law and guidelines for those participating in elections should be made and published in good time. Fairness and transparency must be adhered to in all stages of electoral process."
These principles and standards apply with equal force, subject to necessary modifications, to the holding of referenda.
In conclusion, I agree with the decision of the Court that there was no Constitutional or legal basis for the Constitutional Court to declare invalid the 2000 referendum. Despite the absence of a valid law passed pursuant to Article 271 (4) the holding of the referendum can be justified on the authority of Articles 69 and 271 (3), if the referendum was free and fair as stipulated in Article 69. The Constitutional Court found that because of the legal regime prevailing at the material time, political organisations were not free to canvass for the multiparty political system to which they subscribed, and concluded that the referendum held on 29th June 2000 could not have been free and fair as required by Article 69.
While that finding may not be faulted as a postulate, I hold that it was not a proper basis for granting the second declaration. Notwithstanding the uncontradicted affidavit evidence of Hon. Zachary Olum to the effect that he and other members of the Democratic Party were, on a number of occasions in diverse places, prevented by the Police from holding public meetings, the actual conduct of the referendum and its results were not challenged nor inquired into to determine if it was or was not free and fair.
As a consequence of the referendum, the Movement Political System was adopted and retained in place. To declare the referendum a nullity in these circumstances was untenable in law. In my view the Constitutional Court ought to have refused to grant the second declaration. I therefore agreed that there was merit in grounds 4, 7 and 8, which accordingly succeeded.
Ground 14: Doctrine of Prospective Overruling:
Ground 14 states,
"The learned Judges of the Constitutional Court erred in law and in fact in holding that the doctrine of prospective overruling could not apply to the petition."
We did not find it necessary to make a decision on this ground at the time we announced the decision of the Court in the appeal. In my opinion, it was not necessary to make a decision on the ground at that time because we had held that the Constitutional Court erred in declaring the referendum invalid and yet the purpose of the ground was to save the referendum from invalidation.
However in view of the fact that the point was vigorously argued by both counsel and that the Constitutional Court pronounced itself on it, and having regard to the importance and novelty of the doctrine of prospective overruling to constitutional interpretation and development, it is only fair and just that I give my opinion on it.
Hon Mbabazi, the learned Attorney General, submitted on this ground that even if the Constitutional Court was entitled to make the decision on the issue of the validity of the referendum that Court erred in holding that the doctrine of prospective overruling did not apply to the case. It was his contention that where a statute is held to be unconstitutional courts should not give a retrospective effect to the unconstitutionality so as to set aside rights or obligations, convictions or acquittals or anything done under the statute prior to the date of judgment which declared the statute unconstitutional.
The learned Attorney General pointed out that the doctrine had been developed in the United States by the Supreme Court and had been applied in India, Malaysia, the United Kingdom and other Commonwealth countries. He cited the case of Linkletter Vs Walker. 381 US (1965) 618 where it was held that no distinction is drawn between criminal and civil cases. He submitted that the doctrine is not restricted to criminal cases only.
Hon Mbabazi contended that the most common reason for applying the doctrine of prospective overruling is to protect the people and institutions that have ordered their affairs on the law existing under the old legal regime. He referred to the decision of the Malaysian Supreme Court in Public Prosecutor vs. Dato Yap Peng (1988) LRC (Const.) 69 which applied the decision of the Supreme Court of the United States in Linkletter vs. Walker (supra), then restated the doctrine and gave the rationale for it. He also cited decisions from Canada and New Zealand where elections held under invalid laws had been held to be valid defacto. These decisions included Simpson vs. Attorney General (1955) NZR 279. The full reports of these decisions however were not available to the Court.
The learned Attorney General conceded that he had found no Ugandan decision on the matter. But he referred us to Section 13 (2) of the Interpretation Act which he argued recognises the principle of prospective overruling. It was his contention that it was surprising that the learned Justices of the Constitutional Court held that Section 13(2) saved rights and obligations and yet held that the referendum was invalid. He referred to the judgments of Okello JA, Bahigeine, JA and Engwau JA. He submitted that it was not correct for the Constitutional Court to hold that the expiry of the impugned Act could not nullify the rights which had accrued under it and yet the referendum held under the Act could be nullified.
In conclusion, Hon Mbabazi submitted that even if this Court were to hold that the decision of the Constitutional Court invalidating the impugned Act should stand, the actions conducted under the impugned Act should be saved under the doctrine of prospective overruling.
In reply Mr. Lule, for the respondents, also referred to Section 13(2) and (3) of the Interpretation Act (Cap.3) which saves rights, remedies and liabilities acquired under a repealed Act. He submitted that if Parliament could pass a law taking away peoples rights and then make it expire, and people cannot challenge it, this would be an absurdity. He argued that the elections could not be set aside if that was the law. He submitted that authorities cited on the doctrine of prospective overruling refer to judicial decisions, not legislative repeals. Learned counsel also contended that the rule which is departed from must have existed after a long line of cases, and therefore a single decision on an Act, as in this case, was not sufficient to support the application of the doctrine.
I have already referred to the submissions of Mr Lule with regard to the effect of a null and void Act, when considering grounds 2 and 3, which relate to the competence of a petition challenging an expired Act. The substance of his argument was that once an Act is declared a nullity, it is null and void ab initio and anything done under it has no effect or force of law.
The learned Justices of the Constitutional Court rejected the application of doctrine of prospective overruling for a number of reasons. They distinguished the case of Dato Yap Peng (supra) and gave various reasons for rejecting its application to the instant case. In his lead judgment Okello JA, said,
"Clearly the above case concerns criminal matters. The doctrine of prospective overruling refers to the highest Court of the land. This Court is not. Its decisions can be overturned by the Supreme Court. Even if it were the highest Court of the land, it had never ruled before that the impugned Act was Constitutional. That case is thus, distinguishable from the instant case. It is not therefore a useful authority here."
Engwau JA. held that the doctrine of prospective overruling expounded in the Dato Yap Peng case (supra) did not apply to this case because it was of a civil nature. Twinomujuni JA also rejected the doctrine on the ground that it applies to criminal cases and in the highest Courts only, when he reasoned,
"With respect, a careful reading of this elucidation will reveal that the conditions which attract the application of the doctrine do not exist in this case. For example the doctrine was devised in the Constitutional sphere,
"As a practical solution for alleviating the inconveniencies which would result from its decision declaring a law to be unconstitutional after overruling its previous decision upholding its constitutionality, (emphasis mine)."
Nothing of this sort has happened here. Reference to conviction and acquittal appear to suggest that the doctrine is only applicable in criminal cases. This doctrine can also be applied by the highest Court in the land and not any other Court."
The learned Justice of Appeal also rejected the application of Section 13(2) and (3) of the Interpretation Act because the provision applied only where the Act had repealed another provision or expired Act and that the repealed or expired Act had been enacted constitutionally. He concluded,
"With respect this provision only applies where an Act repeals another enactment or expires. This however, is subject to another rider that the repealing or expiring Act was enacted constitutionally. In this case the Act is null and void. It never became law either on 2nd July 1999 or on 9th June 2000 when it was assented to. It was void ab initio. It could not expire when it never had a valid existence in the first place. Anything which was done under the authority of that Act was invalid. To rule otherwise would be tantamount to authorizing the stampeding of Parliament (as was the case here) to pass kangaroo style legislation oblivious of the Constitution, and to perform unconstitutional acts allegedly under the authority of such legislation, all with impunity. That would be licensing anarchy."
Kitumba, JA agreed with her learned brothers when she said,
"I have looked at the authority which refers to criminal cases. The principle stated therein as I understand it, is that the most superior Court of the country may deliver any decisions stating the position of the law. When it overrules itself, such overruling does not affect previous acquittals or convictions. I must say that this principle is not binding on this Court. I will not follow it."
It is necessary to analyse some of the key judicial decisions referred to by learned counsel for both parties and the
Constitutional Court in order to throw some light on the application of the doctrine of prospective overruling. Great reliance was placed by both counsel on the case Public Prosecutor vs. Dato Yap Peng (supra), and the Linkletter vs. Walker case (supra). I shall examine these two authorities first before I discuss other authorities from various jurisdictions where this doctrine has been developed by courts or legislation and also refer to opinion of distinguished constitutional authors on the doctrine.
In Public Prosecutor vs. Dato Yap Peng (supra) the Supreme Court of Malaysia declared Section 418 A of the Criminal Procedure Code to be in contravention of Article 121(1) of the Federal Constitution of Malaysia; and therefore unconstitutional and void, under the provision of Article 4(1) of the Constitution. The Court held that Section 418A of the Criminal Procedure Code which empowers the Public Prosecutor by a certificate under his hand to require a subordinate Court to transfer a case pending before it to the High Court for trial without the necessity of a preliminary inquiry contravened Article 121 (1) which vested judicial powers in the Judiciary, by giving the Public Prosecutor powers which encroached on judicial power. The provision under S. 418 had been in force for over ten years and many convictions and acquittals had been based on it. Furthermore, its constitutionality had been considered by the courts on several occasions and had been held not to contravene Article 8 (1) of the Constitution which concerns the equal protection of the law.
The Public Prosecutor submitted that the declaration of the section as void would create chaos as the section in question had been resorted to and trials held in the High Court as a result. The court upheld that submission and decided to apply the doctrine of prospective overruling to save previous convictions and acquittals based on the annulled section.
The Court held that where a Statute was declared unconstitutional after a long standing current of decisions to the contrary, the court would not give retrospective effect to the declaration so as to set aside proceedings which had taken place under the Statute prior to the date of the judgment declaring it to be unconstitutional. The doctrine of prospective overruling could be applied by the Supreme Court to give such retroactive effect to its decisions as it considered just, but in this case, no retroactive effect would be given to the decision.
The Supreme Court went on to expound the doctrine of prospective overruling as follows:
"The general principle of retroactivity of judicial declaration of invalidity of a law was modified by the Supreme Court of the United States of America in Link letter V. Walker 381 US 618 1965 (at P. 628) when it devised the doctrine of prospective overruling in the Constitutional sphere as a practical solution for alleviating the inconveniences which would result from its decision declaring a law to be unconstitutional, after overruling its previous decision upholding its Constitutionality.
This doctrine was applied by the Supreme Court of India in IC Golak Wath V. State of Punjab & Another. AIR 1967 SC 1643 (at pp. 1666-1669). The doctrine -to the effect that when a Statute is held to be unconstitutional after overruling a long standing current of decisions to the contrary, the court will not give retrospective effect to the declaration of unconstitutionality so as to set aside proceedings of convictions or acquittals which had taken place under the Statute prior to the date of the judgment which declared it to be unconstitutional, and convictions or acquittals secured as a result of the application of the impugned Statute previously will accordingly not be disturbed - can be applied by the Supreme Court as the highest court of the country as a matter arising under the Constitution to give such retrospective effect to its decision as it thinks fit, to be moulded in accordance with the justice of the cause or matter before it - to be adhibited, however, with circumspection and as an exceptional measure in light of the circumstances under consideration."
The Supreme Court pointed out that in England this doctrine has been recognised by the House of Lords by necessary implication in the Practice Statement (Judicial Precedent) (1966), WLR 1234 issued by Lord Gardiner, LC on 26 July 1966. In Jones vs. Secretary of State for Social Services (1972) AC 944, two Law Lords of the House of Lords, Lord Diplock at page 1015 and Lord Simon of Glaisdale at page 1026 were prepared to consider the application of the American doctrine of prospective overruling to England, in Choice Investment Ltd. vs. Jeromninon (1981) QB 149 Lord Denning M.R. in his judgment in the English Court of Appeal (at page 155) accepted the substance and application of the doctrine. In Deferenne vs. Sabena (1981), All E. R. 122, the European Court of Justice applied the doctrine of prospective overruling predicated on conditions of legal certainty which required the courts as an exceptional measure to declare the law for the future only.
In Linkletter vs. Walker 381 US 618 (1965) the petitioner was convicted in a Louisiana District Court on May 28, 1959 of simple burglary, and his conviction was affirmed by the highest State court. Thereafter, in Mapp vs Ohio 367 US 643, the United States Court of Appeals for the Fifth Circuit held on June 19, 1961, that evidence illegally seized is inadmissible in a State criminal trial, and the petitioner applied for a writ of habeas corpus. The writ was denied by Federal District Court and by the Court of Appeals, which found that the Mapp exclusionary rule was not retrospective.
The Court of Appeals for the Fifth Circuit granted certiorari in order to settle what had become a most troublesome question in the administration of justice. The Court held that the exclusionary rule announced in the case of Mapp does not apply to state convictions which had become final before its rendition. The Court laid down several principles relating to the doctrine of prospective overruling which include the following:
(1) The effect of a subsequent ruling of invalidity on a prior final judgment when collaterally attacked is not automatic retroactive invalidity but depends upon a consideration of particular relations and conduct, or rights claimed to have become vested, of status, of prior determinations deemed to have finality, and of public policy in the light of the nature of the statute and its previous application. (Chicot Drainage Dist vs Baxter State Bank 308 US. 371 Page 627)
(2) No distinction is drawn between civil and criminal litigation. (3) The Constitution neither prohibits, nor requires retroactive effect and in each case the Court determines whether retroactive or prospective application is appropriate. This
approach is particularly correct with reference to the unreasonable search and seizure proscription of the Fourth Amendment.
(4) The primary purpose of Mapp vs Ohio (supra) was the
enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights, and this purpose would not be advanced by the making of the rule retroactive.
The decision in Linkletter vs Walker (Supra) is important in that the Court of Appeals for the Fifth Circuit discussed the historical and jurisprudential origin of the doctrine of prospective overruling. The Court observed that at Common Law there was no authority for the proposition that judicial decisions made law only for the future. Blackstone stated the rule that the duty of the court was not to pronounce a new law, but to maintain and expound the old ones. (1 Blackstone, Commentaries 69 15th Ed, 1809). The Court had followed that rule in Norton vs. Shelby Community 118 US 1886 where it held that unconstitutional action "confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation as inoperative as though it had never been passed. The judge rather than being the creator of the law was but its discoverer".
The Court of Appeals went on to observe that on the other hand, Austin maintained that judges do in fact do something more than discover law; they make it interstitially by filling in with judicial interpretation the vague, indefinite, or generic statutory or common law terms that alone are but the empty crevices of the law. Implicit in such an approach is the admission when a case is overruled that the earlier decision was wrongly decided. However, rather than being erased by the later overruling decision it is considered as an existing juridical fact until overruled, and intermediate cases finally decided under it are not disturbed.
The same Court acknowledged that the Austinian view had gained some acceptance over a hundred years ago when it was decided that although legislative divorces were illegal and void, those previously granted were immunized by prospective application of the rule of the case. Bingham vs. Miller 17 Ohio 445 (1848). The court also referred to the opinion of Cardozo J in Great Northern R. Co. vs. Sunburst Oil & Refining Co. 287 US 358 (1932) where he applied the Austinian approach on the prospective application of a decision of the Montana Supreme Court and said that a state "may make a choice for itself between the principle of forward operation and that of relation backward'. Cardozo J said that the rule was based on the avoidance of "Justice and hardship", citing a long list of state and federal cases supporting the principle that the courts had the power to say that decisions though overruled "are law nonetheless for intermediate transactions."
The Court referred to the opinion of Chief Justice Hughes in Chicot County Drainage Dist. vs. Baxter State Bank. 308 US 371 (1940) where he reasoned that the actual existence of the law prior to the determination of unconstitutionality "is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration".
In LC Golak Nath & Others vs. State of Punjab & Others. AIR 1967 SC 1643, a reference was made to a special bench of eleven Judges of the Supreme Court of India to consider the correctness of the decision of the Court in the Sankari Prada's Case 1952 SCR 89 (AIR 1951 SC 458) which was accepted as correct by the majority in the Sajjan Singh's Case 1965 ISCR 933 (AIR 1965 SC 845). In these cases, the Supreme Court considered the amendability of fundamental rights provisions and the Court held that Parliament had power to amend Part III of the Constitution which contained fundamental rights.
The reference was made in three petitions challenging the constitutionality of the seventh amendment which permits a state to compulsorily acquire estates or any other rights, notwithstanding the prohibition in Article 13(1) that the state shall not make any law which takes away or abridges the rights conferred by Part III and any law in contravention of this clause shall be void to the extent of the contravention. The amendments were made to Article 314 and included in the Ninth schedule and placed beyond any challenge on grounds of inconsistence.
The Supreme Court of India reversed itself and held that Parliament did not have power to amend Part III of the Constitution by taking away or abridging the fundamental rights. It held that the various amendments abridged the scope of the fundamental rights but on the basis of earlier decisions were valid. Therefore the amendments could not be questioned on the basis that they offended Articles 13, 14 and 31. The Court held that Parliament would have no power from the date of the judgment to amend the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.
The Supreme Court held further that the doctrine of prospective overruling is now accepted in America in all branches of the law, including Constitutional Law. Even in England this doctrine has been recognized by the House of Lords by necessary implication in its Practice Statement (1966) IWLR 1234 and American Case Law. It also held that while ordinarily the Supreme Court will be reluctant to reverse its previous decision, it is its duty in the constitutional field to correct itself as early as possible for otherwise the future progress of the people will be at stake. Since it is indisputable that a Court can overrule its earlier decision there cannot be any valid reason why it should not restrict its ruling to the future and not to the past. Even if a party filing an appeal may not be benefited by it, in similar appeals which he may file after the change in the law he would not stand to benefit. The decision cannot be obiter for what the Court in effect does is to declare the law but on the basis of another doctrine restricts its scope. Stability in law does not mean that injustice shall be perpetuated.
Subba Rao CJ who wrote the majority judgment in Golak's case (supra) pointed out that the Constitution of India did not expressly or by necessary implication speak against the doctrine of prospective overruling. Indeed he observed, Articles 32, 141 and 142 were couched in such wide and elastic terms as to enable the Supreme Court to formulate legal doctrines to meet the ends of justice. The only limitation thereon he pointed out was "reason, restraint and injustice." He outlined the circumstances under which the doctrine may be invoked, at page 1669,
"As this Court for the first time has been called upon to apply the doctrine evolved in a different country under under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions:
(1) The doctrine of prospective overruling can be invoked only in matters arising under the Constitution. (2) it can be applied by the highest Court in the country i.e. the Supreme Court as it has the Constitutional jurisdiction to declare law binding on all the Courts in India; (3) the Scope of retroactive operations of the law declared by the Supreme Court superseding its "earlier decisions" it left to its discretion to be moulded in accordance with justice of the cause or matter before it." (emphasis added)
In this ease the Supreme Court took into account the consequences that would result from the invalidation of the constitutional amendments, and applied the doctrine of prospective overruling to declare the law only for the future. Subba Rao, CJ held at page 1669:
"We have arrived at two conclusions namely (1) the Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights; and (2) this is a fit case to invoke and apply the doctrine of prospective overruling. What then is the effect of our conclusion on the instant case? Having regard to the history of the amendments their impact on the social and economic affairs of our country and the chaotic situation that may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution, we think that considerable judicial restraint is called for. We therefore declare that our decision will not affect the validity of the Constitution (Seventh Amendment) Act 1964 or other amendments made to the Constitution taking away or abridging the fundamental rights. We further declare that in future the Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights."
I shall now consider two decisions of the Supreme Court of Canada which have developed the doctrine of prospective overruling by granting temporary validity to unconstitutional Acts to allow Government to take appropriate action to comply with the decision of the Court. The doctrine was first fashioned in the case of Reference re Manitoba Language Rights (1992) I.S.C.R. 212 where the Supreme Court of Canada applied the doctrine of temporary validity to enable the parties to comply with the court's previous judgment. Briefly the facts were that following the judgment of the Supreme Court in Reference Manitoba Language Rights (1985) I.S.C.R. 721 a dispute arose among the parties concerning as to which instruments had to be translated, reenacted, printed and published, pursuant to sections 2 and 3 of the Manitoba Act, 1870, in order to comply with the judgment. To solve the dispute the Court agreed to hear new questions put forward by the parties to determine whether certain types of Orders-in-Council and documents incorporated by reference in the Acts of the Legislature, fell within the scope of Section 23. The Supreme Court held that Section 23 of the Manitoba Act applied to Orders-in-Council which were of a legislative nature and under certain conditions, to documents incorporated by reference in legislation.
The Supreme Court further held that instruments enacted unilingually by the Government of Manitoba between the handing down of Reference re Manitoba Language Rights (1985) I.S.C.R.
721 and the handing down of the judgment which were deemed to fall within the scope of Section23 were to be rendered valid retroactively provided that compliance with Section 23 was achieved within the time outlined above. The period of temporary invalidity would not, however apply to any unilingual Act of the legislature enacted after the date of the judgment.
The Supreme Court also held that the period of temporary validity of Acts of the Manitoba legislature which would have been in force were it not for that unconstitutional defect would be extended for a period of time to be determined by agreement between the parties. The period of temporary invalidity was extended for three months from the date the judgment was handed down. The parties had to reach an agreement with respect to the further existence of the time period within those three months or apply to the Court for a determination of the issue.
The Court discussed several principles which could justify application of the doctrine of temporary validity including the "defacto doctrine" and the "doctrine of necessity", in order to uphold rights obligations and other effects which had arisen under unconstitutional Acts. But the Court stated that the doctrine of prospective overruling suspending the invalidity was the most appropriate in this case:
"The only appropriate solution for preserving the rights, obligations and other effects which have arisen under invalid Acts of the Legislature of Manitoba and which are not saved by the de facto or other doctrines is to declare that in order to uphold the rule of law, these rights obligations and other effects have, and will continue to have the same force and effect they would have had if they had arisen under valid enactments, for that period of time during which it would be impossible for Manitoba to comply with its constitutional duty under S.23 of the Manitoba Act 1870. The Province of Manitoba would be faced with chaos and anarchy if the legal rights, obligations and other effects which have been relied upon by the people of Manitoba since 1890 were suddenly open to challenge. The constitutional guarantee of the rule of law will not tolerate such chaos and anarchy."
The Court concluded,
"Nor will the Constitutional guarantee of the rule of law tolerate the Province of Manitoba being without a valid and effectual legal system for the present and the future. Thus it will be necessary to deem temporarily valid and effective the unilingual Acts of the Legislature of Manitoba which would be currently in force, were it not for that unconstitutional defect, for the period of time during which it would be impossible for the Manitoba Legislature to fulfill its constitutional duty. Since this temporary validity will include the legislation under which the Manitoba Legislature is presently constituted, it will be legally able to re enact print and publish its laws in conformity with the dictates of the Constitution once they have been translated."
The decision in re Manitoba Language Rights (supra) was confirmed in Schacher vs. Canada (1992) 2 S.C.R. 679 92 C.L.L.R. 14, 036, 93 D.L.R. (4th) 1, 10 C.R.R. (2nd) 1. In this case the respondent, Shalom Schacher and his wife Maria, were expecting their second child in the summer of 1985. The respondent intended to stay home with the newborn as soon as after the birth as his wife was able to return to work. Ultimately, he took three weeks off work without pay. Maria received fifteen weeks of maternity benefits under Section 30 of the Unemployment Insurance Act 1971 as amended. The respondent first applied for benefits under Section 30 in respect of the time he had to take off work, but ultimately modified an application under Section 32 for "paternity rights". This is a section, which provided for benefits to be shared between the two parents in accordance with their wishes. The respondent's application was denied on the basis that he was "not available for work", a ground of disentitlement for all applicants except those applying for maternity benefits or adoption benefits. The respondent appealed against the decision to a Board of Referees. The appeal was dismissed and the respondent made a further appeal to an Umpire. This appeal was never heard as the respondent made known his intention to raise Constitutional issues and it was agreed by the parties that the Federal Court, Trial Division, was a better forum for resolving the Constitutional issues.
The Federal Court, Trial Division, found a violation of Section 15 of the Canadian Charter of Rights and Freedoms in that Section 32 discriminated between natural parents and adoptive parents with respect to parental leave. The court granted the declaratory relief under Section 24(1) extending to natural parents the same benefits as were granted to adoptive parents under Section 32.
The appellants appealed to the Federal Court of Appeal, which upheld the Trial Divisions decision, and dismissed the appeal. Leave was granted to the appellant to appeal to the Supreme Court. It should be noted that by this time the impugned provision had subsequently been amended by Parliament to extend parental benefits to natural parents on the same footing as they were provided by adoptive parents for a period totaling 10 weeks rather than the original 15.
The Supreme Court held that Section 32 was inconsistent with section 15(1) of the Canadian Charter of Rights and Freedoms by making a distinction between the benefits available to natural and adoptive parents, required by Section 52(1) of the Constitution Act 1982, and was of no force and effect. The Court however, stated that there was no need for a declaration of invalidity or suspension thereof given the November 1990 repeal and replacement of the impugned provision. With regard to the power of the Court to strike down a legislation but suspend the effect of the declaration, Lamer CJ who wrote the lead judgment said at Paragraph 80:
"A court may strike down legislation or legislative provision but suspend the effect of that declaration until Parliament or the Provincial Legislature had had an opportunity to fill the void. This approach is clearly appropriate where the striking down a provision poses potential danger to the public R V. Sirain (1999) 1 S.C.R. 933 or otherwise threatens the rule of law (Reference Re Manitoba Language Rights (1985) 1 S.C.R. 721. It may also be appropriate in cases of under inclusiveness as opposed to over-breadth. For example, in this case some of the interveners argued that in cases where a denial of equal benefits of the law is alleged, the legislation in question is not usually problematic in and of itself. It is its under inclusiveness that is problematic, so striking down the law immediately would not deprive deserving persons of benefits without providing them to the applicant. At the same time, if there is no obligation on the Government to provide the benefits in the first place. It may be inappropriate to go ahead and extend them. The logical remedy is to strike down but suspend the declaration of invalidity to allow the Government to determine whether to cancel or extend the benefits."
The Court declined to make a declaration of invalidity, on the ground that Parliament had corrected the invalidity. Lamer, C.J., said, at Para 104:
"in the result, the appeal is allowed and the judgment of the trial judge is set aside. Normally I would order that section 32 of the Unemployment Insurance Act 1971 (subsequently S. 20 of the Unemployment Insurance Act 1985) be struck down pursuant to S. 52 and be declared to be of not force or effect. I would further suspend the operation of this declaration to allow Parliament to amend the legislation to bring it into line with its Constitutional obligations. There is, however, no need for a declaration of invalidity or a suspension thereof at this stage of this matter given the November 1990 repeal and replacement of the impugned provisions."
This means that once Constitutional issues are framed they must be resolved by the court. The court may, however, suspend the declaration of invalidity.
The doctrine of prospective overruling has been applied by the Constitutional Court of South Africa. In Case and Another vs. Minister of Safety and Security 1996 (3) S.A. 617 (CC); 1966 (5) B.C.L.R 608 (CC) which cited with approval the two Canadian cases considered above. In Case and Another vs. Minister of Safety and Security (Supra) the petitioners challenged the Constitutionality of section 2(1) of the Indecent or Obscene Photographic Matter Act 1967, under which they had been charged with possessing of video cassettes containing sexually explicit matter. The applicants alleged that the section was inconsistent with several sections of the Constitution of the Republic of South Africa. The Constitutional issue referred to the court was:
"Whether the provisions of section 2(1) of the Indecent or Obscene Photographic Matter Act, Act 37 of 1967, are inconsistent with the provisions of Chapter 3 of the Constitution, in particular the provisions of Section 8 (equality), 13 (the right to privacy), 14 (1) (the right to freedom of conscience, 15 (freedom of speech, expression and artistic creativity), 24 (administrative justice), and 33(1) (the permissible limitations of the fundamental rights entrenched)."
The President of the Court directed that the referred question be dealt with as an abstract question of law without leading any evidence. The Court held that section 2(1) was inconsistent with the Constitution of the Republic of South Africa and was, with effect from the date of judgment, declared to be invalid and of no force and effect.
In the course of argument on behalf of the intervening parties and on behalf of amici People Opposing Women Abuse and the Christian Lawyers Association, the court was urged to exercise its powers under the proviso to section 98 (5) of the Constitution to keep the Act temporarily alive in the event that it should make a finding of invalidity. The court was empowered under that provision to declare a law invalid to the extent that it is inconsistent with the Constitution provided that it may:
"in the interest of justice and good Government, require Parliament or any other competent authority, within a period specified by the court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified."
Mokgoro J, in the lead judgment, observed in Para (83) of her judgment, as follows:
"Such a suspended declaration of invalidity is not highly to be indulged since it preserved fully operational a Statute in the face of this court considered finding that the law violates the Constitution. Probably the predominant
consideration in determining whether to suspend a declaration of invalidity is whether undesirable social consequences will flow from the immediate striking of a Statute because a lacuna is created in the law. That indeed was the contention of the parties who urged the court to suspend the invalidity. They argued forcefully that the immediate disappearance of the challenged provision would lead to uncontrollable proliferation of harmful pornography."
She concluded,
"We are unpersuaded by that contention. As set forth in paragraph 8 of this opinion, the 1967 Act is only part (the less important part at that) of the system of regulation of sexually explicit materials in South Africa. The 1974 Act - the practical enforceability of which is not in any manner affected by our decision - is considerably broader in application than the 1967 Act. The 1974 Act, which provides for the prohibition of the production and distribution of material deemed "Indecent or obscene or harmful to public morals" has been the mainstay of the system of regulation of sexually explicit material since its enactment. The Act allows the prohibition of the possession of undesirable publication or objects and also prohibition of the possession of films."
She held that she was quite satisfied that no lacuna would open up as a consequence of the immediate nullification of the operative provisions of the 1967 Act.
Regarding the issue of suspending invalidity the judgment referred to the two Canadian cases of Reference vs. Language Rights (Supra) and Schacher vs. Canada (Supra) and recognised that the remedy of suspending the invalidity had been developed by the courts:
"Although the Canadian Constitution does not contain a provision equivalent to section 98 (5) proviso, the Canadian Supreme Court fashioned such a remedy in Reference Re Language Rights Under the Manitoba Act (1985) 19 D.L.R. (4th) 1, 36 to deal with such a lacuna. The Canadian Supreme Court cited Lord Pierce's dissent in Madzi-Mbamuto V. Larder Burke (1969) 1 AC (PC) in which Lord Pierce applied the doctrine of "state necessity" in his analysis of the legal regime in the aftermath of the unlawful unilateral declaration of independence in Rhodesia, opining that to disregard all the illegal provisions in the territory would create a "vacuum and chaos" 19 D.L.R. (4th) at 31. In Schacher V. Canada (1992) 10 C.R.R. 2nd) 1, the Canadian Supreme Court identified three circumstances under which it would suspend invalidity "(A) striking down the legislation without enacting something in its place would pose a danger to the public, (B) striking down the legislation without enacting something in its place would threaten the rule of law; or (C) the legislation was deemed unconstitutional because of under-inclusiveness rather than over-breadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefiting the individual whose rights have been violated."
Justice Mokgoro also referred and distinguished two South African cases, where the court temporarily suspended the invalidity of a Statute. In the Executive Council of the Western Cape Legislature and Others V. President of the Republic of South Africa (1995) 10 B.C.R. 1289 (cc) Chaskalson P, emphasised the serious consequences for good government if the invalidity of a provision delegating powers to the President to amend legislation relating to Local Government elections were not suspended:
"An order which would in effect disrupt the functioning of transitional local government structures and prevent the elections from being held would not in my view be in the interests of good government. It could lead to increased tension in areas where the inhabitants are anxious and to considerable waste of expenditure bearing in mind the preparations that are already underway and the steps that have been taken to lay the ground work for such elections." (ibid Para 110)
The Court also took into account the limited prejudice that would be suffered by the applicants and said,
"The prejudice to the applicants consequent upon such an order being made is by comparison not substantial.... Weighing this limited potential prejudice as far as the applicants are concerned against the much greater prejudice to local government generally, and the holding of elections in particular, which will result if the proclamations are declared invalid with immediate effect, it seems clear that justice and good government require that Parliament be given an opportunity if it wishes to do so, to remedy the situation (Para 112).
A declaration suspending invalidity was also made in S.V. Ntuli (1996), B.C.L.R. 141 (CC) which suspended a provision requiring prisoners convicted in lower courts to obtain a Judge's certificate if they wished to prosecute an appeal without the assistance of a lawyer. The court noted that allowing prisoners to lodge appeals without certificates would lead to a significant increase in the number of such appeals which would require new legislation and which would take a lot of time.
It should be noted that the Constitution of the Republic of South Africa 1996 which establishes the Constitutional Court as the highest court in Constitutional matters has conferred express powers to superior courts to apply the principle of prospective overruling. Article 172 (1) lays down powers of the courts in Constitutional matters as follows:
"(1) When deciding a Constitutional matter within its power a Court -
(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of inconsistency; and (b) May make any order that is just and equitable including -
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect."
Under Article 172(2) of same the Constitution, the Supreme Court of Appeal, and the High Court have powers to make orders concerning the Constitutional validity of an Act of Parliament, a Provincial Act or any conduct of the President, but an order of Constitutional invalidity has no force unless it is confirmed by the Constitutional Court. This appears to be one of the first attempts to codify and constitutionalise the doctrine of prospective overruling in Africa.
The doctrine of prospective overruling has been accepted in the Federal Republic of Germany. Prof. Donald P. Kommers writing in his book: The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press Durheim & London 1997) at p. 54 states:
"Whenever the Constitutional Court strikes down a law in whole or in part, the effect is prospective (ex tunc). This rule is qualified by a provision in the Federal Constitutional Court Act (section 79(1)) that permits new trials in criminal cases in which a court convicts a defendant under a subsequent Statute. Statutes declared incompatible with the Basic Law but not void may continue to be enforced, but only under conditions laid down by the Constitutional Court. The effect of such decisions on other courts is substantial: they may not proceed with pending cases arising under such Statutes until the legislature has amended or corrected the Statute in conformity with the guidelines set by the Constitutional Court."
Prof. Kommers identifies two strategies by which the Constitutional Court declares Statutes unconstitutional without declaring them void or suspending the declaration of voidness unless the legislature acts. He states at page 53,
"The practice of declaring a legal provision unconstitutional but not void is one of the two strategies used by the court to soften the political impact of its decisions. This first strategy uses admonitory decisions. ("Appellentscheidug") to tender advice to Parliament with respect to Statutes or legislative omissions that run a foul of the Basic Law or are likely to do so. This strategy of declaring a law or practice unconstitutional but not void is designed to prevent the greater hardship or inconvenience that would flow from the complete voidance of a Statute. How long and what conditions an unconstitutional but unvoided law will remain in force is a matter the court reserves to itself to decide. The court usually sets a deadline for a corrective legislative action and occasionally directs Parliament to adopt a specific solution. More often the court lays down the general guidelines within which Parliament is required to legislate."
The author goes on to describe the second strategy of the court as follows:
"Under the second strategy, the court actually sustains a challenged Statute but warns the legislature that it will void it in the future unless the legislature acts to amend or repeal the law. Cases employing this decisional mode often involve equal protection claims arising out of Statutes that deny benefits or privileges to some persons while conferring them on others. Such decisions are prudential judgments designed to give the legislature time to adjust to the changing conditions or to void the political or economic chaos that might result from a declaration of unconstitutionality. By resorting to this procedure, the court keeps the Constitutional dialogue going and furnishes Parliament with the flexibility it needs to work out creative solutions to the problems under scrutiny."
The learned Attorney General submitted that section 13 of the Interpretation Act (Cap.3) could be relied upon in applying the doctrine of prospective overruling. Section 13 provides,
"(1) Where this Act or ay other Act repeals and reenacts, with or without modification, any provision of a former Act, references in any other enactment to the provisions so repealed, shall, unless the contrary intention appears, be construed as references to the provisions so reenacted.
(2) Where any Act repeals any other enactment, then unless the contrary intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.
(3) Upon the expiry of any Act, this section
shall apply as if the Act had been repealed."
From the authorities discussed above, it is clear that the doctrine of prospective overruling does not cover repealed or expired, but nullified Statutes on account of being unconstitutional. The effects of repeal or expiration of a valid Statute and those of an unconstitutional Statute must necessarily be different due to the fact that repeals deal with a valid Statute but nullification deals with a defective Statute which is void. If the impugned Act in this appeal had merely been repealed or expired there would have been no doubt as to the status of vested rights and liabilities under the Act. The question of prospective overruling arises only where a Statute is declared unconstitutional, and the issue is whether declaration of unconstitutionality should be retrospective or prospective. I therefore agree with the Constitutional Court that section 13 of the Interpretation Act was not applicable to this case.
The learned Attorney General conceded that there was no Ugandan judicial decision on the doctrine of prospective overruling and I have been unable to find any. The legal position appears to be that there is no local authority which allows or prohibits the Constitutional Court or this Court to apply the doctrine of prospective overruling. The only issue which remains to be answered is whether the Constitutional Court erred in not applying the doctrine to this case. The Constitutional Court held in the first place, that the doctrine did not apply to this case because it applied to criminal cases only. In my view, the Constitutional Court erred in holding that the doctrine applies to criminal cases only. It is now well established that the doctrine applies to both criminal and civil cases, including Constitutional cases.
The doctrine is applied to avoid a lacuna in the law, to promote justice and the rule of law, to promote good Government and a stable Constitutional order, and to prevent chaos and anarchy. It may be employed to suspend the declaration of invalidity to allow Parliament or Government to rectify the defect, or to apply the decision only to the future.
The Constitutional Court also held that it could not apply the doctrine of prospective overruling because the doctrine was reserved for the highest Court in the country of which it was not. There is substantial authority for the view held by the Constitutional Court. Almost all decisions cited in this judgment support that view. The case of South Africa is slightly different in that superior courts have powers vested in them by the Constitution to interpret the Constitution and apply the doctrine of prospective overruling under Article 172(2), but the declaration of invalidity has no force of law unless confirmed by the Constitutional Court. The South African position is different from the Ugandan situation in that in Uganda, decisions of the Constitutional Court have the force of law without the requirement for confirmation by this Court except where there is an appeal to this Court. Secondly, there is no Constitutional provision authorizing the application of the doctrine by either the Constitutional Court or this Court.
I am therefore of the view that it is still a moot point whether the Constitutional Court has power to apply the doctrine of prospective overruling. Accordingly, I am unable to hold that the Constitutional
Court erred in coming to the conclusion that it had no jurisdiction to apply the doctrine of prospective overruling because it was reserved for the highest Court in the country.
Finally, the Constitutional Court held that the doctrine of prospective overruling applies only to situations where the Court overrules a long line of its decisions to preserve and protect actions taken and rights acquired under the previous decisions. The Malaysian, American, Indian and Canadian decisions appear to suggest so, since the doctrine has been developed in those jurisdictions by the courts. But recent developments in United Kingdom, European Union, Germany and South Africa demonstrate that the doctrine of prospective overruling can be authorised by the Constitution or other legislation, and can be extended to provide a remedy where a court has struck down a statute even if there were no previous similar cases which have been overruled. It is possible that the doctrine could have been considered in this case had the referendum been invalidated by this Court.
It appears to me that the doctrine of prospective overruling is a relatively new principle which has been developed in various jurisdictions under different circumstances and which may be applied in Uganda after careful consideration. It is a useful remedy which is based on judicial discretion to do justice in each case to preserve the values and goals explained earlier in this judgment, these reasons, which include the preservation of the rule of law and a stable Constitutional order and the prevention of chaos and anarchy. The doctrine should be further developed in Uganda to clarify its scope and application in future.
On the whole, therefore, I hold that the Constitutional Court did not err in holding that the doctrine of prospective overruling did not apply to the instant case. I find no merit in ground 14 which should fail.
On the issue of costs, we ordered that each party bears its costs of this appeal, but the respondents get half of the costs in the Constitutional Court. In my view, we ordered so because this appeal partially succeeded but the respondents substantially succeeded both in this Court and in the Constitutional Court on the main finding that the impugned Act was made in contravention of the Constitution. The partial success of the appellant on the issue of the validity of the referendum was substantial in its practical impact, but minor in terms of issues.
It was for these reasons that I agreed with the decision of the Court announced earlier.
REASONS OF KAROKORA, JSC FOR THE COURT'S DECISION:
We heard the appeal from 9 to 11 August 2004, and partially allowed it but reserved our reasons for each of the Justices to give their reasons individually. I now proceed to give my own reasons for our decision.
The facts giving rise to this appeal are set out in the respondents' petition which were set out in the reasons for the Court's decision by the Hon. The Chief Justice, Odoki, CJ. I therefore do not consider it necessary to repeat them. However, the respondents had raised a number of matters which they considered that the Referendum (Political Systems) Act 9 of 2000, was inconsistent with the Constitution. The respondents contended that the matters raised were unconstitutional and therefore, prayed that the Act ought to be struck down as null and void.
In answer to the petition the appellants stated that both the referendum (Political Systems) Act 2000 and the referendum which was held under the Act was organised in accordance with the Constitution. Both the petition and the answer to the petition were supported by affidavits. After hearing the petition, the Constitutional Court unanimously allowed the Petition with costs to the respondents.
The appellant was dissatisfied and hence this appeal in which they filed 14 grounds of appeal. These grounds are set out in the course of my discussion as I proceed to give reasons on each of the grounds.
The appellant was represented by Hon. Amama Mbabazi, the Attorney General, assisted by Mr. Matsiko, Principal State Attorney. The respondents were represented by Mr. G. S. Lule, assisted by Mr. Joseph Balikuddembe. At the commencement of hearing the appeal, Hon. Amama Mbabazi abandoned the 1st ground and later after conclusion of his submission, on each of the grounds he abandoned ground 13. He submitted that ground 12 was covered by arguments on other grounds. The remaining grounds were argued by counsel for the appellant in five batches as follows:
a) Grounds 2 and 3 were argued together. b) Grounds 5 and 6 were argued together.
c) Grounds 9, 10 and 11 were argued together. Grounds 4, 7 and 8 were argued together.
d) The remaining ground 14 was argued separately.
Counsel for the respondents adopted the same approach before us with a slight variation as they had adopted before the Constitutional Court. I shall consider the grounds in similar manner with variation where I find it necessary to do so.
Grounds 2 and 3 which were argued together state that:
"(2) The learned Judges of the Constitutional Court erred in law and in fact in holding that the expired Referendum (Political Systems) Act 2000 can be challenged as being unconstitutional.
(3) The learned Judges of the Constitutional Court erred in law and in fact in hearing and deciding on a petition challenging a non-existing law."
Mr. Matsiko, counsel for the appellant submitted that at the time the petition was heard by the Constitutional Court, there was no dispute between the parties which required the Constitutional Court to resolve. The reasons for his submission was that firstly, when the petition was heard, the referendum (Political Systems) Act 2000 was no longer an act of Parliament, which could be challenged in court under Article 137(3)(a) of the Constitutional Court as at that time it had expired.
Secondly, counsel criticised the Justices of the Constitutional Court for considering whether the Act still existed when the petition was filed instead of challenging the rights and liabilities that were creasedly the impugned Act. He further contended that the Justices of the Constitutional Court were in error for holding that the political system adopted in the referendum could be challenged when the respondents had not challenged the referendum which was held under the impugned Act. Counsel contended that an expired law could not breach the constitution.
Mr. Lule, counsel for respondents, while adopting the submissions he had made before the Constitutional Court, submitted that the right to challenge an Act of Parliament was provided under Article 137 of the Constitution. Consequently, he contended that the challenge of the Act started when the petition was filed alleging that Act 9 of 2000 contravened the Constitution. He submitted that under Article 137(3) anything done under the authority of Act 9/2000 could be challenged.
The Constitutional Court held that the impugned Act could be challenged as it was still in existence when the petition was filed despite the fact that it had expired by the time the petition was heard and determined.
Okello, JA, withwhom other Justices agreed held inter alia that:
"Even if the impugned Act had expired, that expiry could not render the petition incompetent. If it had expired the rights created by the impugned Act would not have been affected by the expiry of the Act. Section 13(2)(c) of the Interpretation Act saves the rights, privileges, obligations and liabilities created by a repeated or spent Act."
I agree with the above conclusion; because section 13(2)(c) of the Interpretation Act provides that:
"Where any Act repeals any other enactment then unless the contrary intention appears, the repeal shall not -
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed."
In this case, the Referendum (Political Systems) Act 9 of 2000 was enacted on 7th June 2000, when the respondents filed the petition in the Constitutional Court on 22nd June 2000, alleging that the Act was passed in contravention of diverse provisions of the Constitution. In my view, the subsequent expiry of the Act, after its purpose was accomplished did not erase its effects nor did it extinguish the cause of action to which the enactment gave rise. The Constitutional Court was seized of a live and existing dispute and therefore, did not err in holding that the Act can be challenged in a Constitutional Court under Article 137 of the Constitution.
It was for those reasons that I supported the decision of the Court on grounds 2 and 3. In the result, these two grounds ought to fail.
Grounds 5 and 6 which were argued together provide that:
"(5) The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 was passed in contravention of article 271(2) of the Constitution.
(6) The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act, 2000 amended article 272(2) of the Constitution."
The 1995 Constitution commanded Parliament to give effect to the provisions of the article.
The relevant clauses (2), (3) and (4) of article 271 of the Constitution provide that: -
"271(2) Two years before the expiry of the term of the first Parliament elected under this Constitution, any person shall be free to canvass for public support for a political system of his or her choice for purpose of a referendum.
271(3) During the last month of the fourth year of the term of Parliament referred to in clause (2) of this article, a referendum shall be held to determine the political system the people of Uganda wish to adopt.
271(4) Parliament shall enact laws to give to the provisions of this article."
A time table leading to the holding of a referendum on political system had been set by Article 271 of the Constitution. The first term of the 1st Parliament commenced on 2nd July 1996, and expired on 1st July, 2001. Two years before expiry of the 1st term of the first Parliament according to clause (2) of article 271 was 2nd July 1999. And during this period, according to clause (2) of article (271) every person was supposed to be free to canvass for a political system of his or her choice; and the last month of the fourth year of the said 1st term of Parliament was June 2000, when the referendum ought to have been held to determine the political system, the people of Uganda wished to adopt.
Hon. Amama Mbabazi submitted that clauses (2) and (3) of Article 271 must be read together, the effect of which is that any person had a right to canvass for a political system of his or her choice. He submitted that the onus was on respondents to prove that there was no right of canvassing for a political system of their choice. Counsel criticised the Justice of Constitutional Court for holding that the people had not campaigned or canvassed for support when there was no evidence to support that fact.
Mr. Lule submitted that whereas there were laws in place providing for the people to canvass for the political systems, he contended that those laws were invalid. He cited Act 2/1999 which was nullified by the Constitutional Court. On the issue of canvassing, Mr. Lule submitted that while section 29 of Act 9/2000 saved everything done in good faith under Act 2/99. The making of Act 9/2000 was not in good faith since it was made in anticipation of the first Act being declared unconstitutional.
In the instant case, the Referendum (Political System) Act 9 of 2000 - was enacted to give effect to the provisions of article 271 on 7th June 2000, providing for the holding of the referendum. Clearly, the Act never conformed to the timetable set up by the Constitution, because whereas its long title stated that the Act was enacted "to make provision for the holding of the referendum required to be held under article 271," the Act was enacted on 7th June 2000, long after it was due and sought to abridge the period for canvassing for the purposes of referendum. Section 2 of the impugned Act, sought to abridge the period by stating that:
"This Act shall be deemed to have come into force on 2nd July, 1999."
In my view, whereas Parliament had powers to make law providing for the period of canvassing for public support for a political system of their choice two years before the referendum was held, clearly it had no constitutional powers to pass a law with retrospective effect that would abridge the period from 12 months to 3 months provided by article 271 for people to canvass for support.
I notice that the same Act provided in section 29 for validation of Statutory Instrument which had been made prior to the enactment of the impugned Act. The section provided that:
"29. Notwithstanding the provisions of any other law, any action taken or purported to have been taken in good faith, and any statutory instrument made or purported to have been made in good faith, before publication of this Act in the Gazette for the purpose of the referendum required to be held under article 271 of the Constitution shall be deemed to have been taken or made under this Act."
The above section sought to validate action taken and statutory instruments made in good faith prior to the enactment of the impugned Act.
In my view, sections 2 and 29 of the impugned Act could not cure the invalidity of the Act, which was passed contrary to the timetable prescribed by article 271 of the Constitution. In the result, I would hold that the Constitutional Court never erred in holding that the Act was passed in contravention of article 271(2) of the Constitution. It was for the above reasons that I supported the decision of the Court. Consequently, grounds 5 and 6 must fail.
Grounds 9, 10 and 11 were argued together and I shall deal with them together. Each of them complained as follows:
"(9) The learned judges of the Constitutional Court erred in law and in fact in holding that a committee of the whole House is not a standing committee of Parliament.
(10) The learned judges of the Constitutional Court erred in law and in fact in holding that the passing of the Referendum (Political Systems) Act 9/2000 contravened article 90 of the Constitution.
(11) The learned judges of the Constitutional Court erred in law and in fact in holding that the voting method adopted by Parliament in passing the Referendum (Political System) Act 9/2000 contravened article 89 of the Constitution."
The three grounds concerned with, firstly, whether the committee of the Whole House was a standing committee; secondly, whether the passing of the impugned Act contravened article 90 of the Constitution; and thirdly, whether the method of voting by "Ayes" and "Noes" contravened article 89 of the Constitution.
Article 90 deals with the committees of Parliament and provides as follows:
"90(1) Parliament shall appoint standing committees and other committees necessary for the efficient discharge of its functions.
90(2) The following shall apply with respect to the composition of the
committees of Parliament -
(a) The members of Standing Committees shall be elected from among members of Parliament during the first session of Parliament
(b) The rules of procedure of Parliament shall prescribe the manner in which the members and Chairpersons of the committees are to be elected.
90(3) The functions of Standing Committees shall include the
following —
(a) To discuss and make recommendations on all bills laid before Parliament.
(b) To initiate any bill within their respective areas of competence.
(c)
(d)
(e)
90(4) In the exercise of their functions under this article, committees of
Parliament —
(a) May call any Minister or any person holding public office and private individuals to submit memoranda or appear before them to give evidence;
(b) May co-opt any member of Parliament
(c) Shall have the powers of the High Court for -
(i) enforcing the attendance of witnesses
(ii) compelling the production of documents, and
(iii) issuing a commission or request to examine witnesses abroad."
I have perused the copy of the Hansard which was produced in Court. The Hansard shows that there were no Standing and other committees appointed by Parliament under Article 90(1) of the Constitution which would enable Parliament to carry out its functions. However, Parliament merely used a committee of the Whole House to transact its legislative functions which is not a Standing Committee. It must be observed that although the committee of the Whole House may be permanent, it does not possess the characteristics of Standing Committee spelt out in Article 90(3) of the Constitution. Consequently, the Constitutional Court was correct in holding that the Committee of the Whole House was not a Standing Committee.
It was for that reason that I found no merit in ground 9 of the appeal.
Ground 10 complained that the Constitutional Court erred in holding that the passing of the Referendum (Political Systems) Act 9/2000 contravened article 90 of the Constitution by reason of the omission to refer the Bill to the Standing Committee for scrutiny and recommendation by the Standing Committee. It must be noted that whereas article 90(2)(a) of the Constitution prescribes the functions of the Standing Committee to include scrutiny and recommendations of the Bills before Parliament passes them, this does not mean that Parliament has no powers to pass laws under article 79(1) of the Constitution on any matter for peace, order development and good governance of Uganda.
I have carefully considered the arguments by both counsel on this ground and have found with respect that there is nothing in article 79(1) of the Constitution which restricts Parliament from making laws without first seeking views/opinion from the Standing Committee. In any case, article 90 does not make it mandatory for Parliament to refer a Bill to a Standing Committee for assistance before exercising its legislative functions. In my view, Parliament can independently pass a law under article 79 of the Constitution without seeking assistance from the Standing Committee. There is nothing in Article 90 which can be construed as restricting legislative functions of Parliament in the exercise of its functions. In the result, ground 10 had to succeed.
Ground 11 complained that the Judges of the Constitutional Court had erred in law and in fact in holding that the voting methods adopted by Parliament in passing the Referendum (Political Systems) Act 9/2000 contravened article 89 of the Constitution.
The Justices of the Constitutional Court had held that the methods of voting by "Noes" and "Ayes" in passing the impugned Act had contravened article 89 of the Constitution. The Justices of the Constitutional Court held so in reliance on the decision of this Court in the case of Paul Ssemogerere & 2 others - vs -The Attorney General Constitutional Appeal No. 1/2002.
The objective of the enactment is clearly brought out in the long title of the Act which states as follows:
"An Act to make provisions for the holding of the referendum required to be held under article 271 of the Constitution to determine the political system the people of Uganda wish to adopt and for other related matters."
In my view, the long title of the impugned Act shows that the Act never involved amendment of the Constitution. Therefore, the Constitutional Court misconstrued the decision of the Supreme Court in Constitutional Appeal No. 1 of 2002, Paul Kawanga Ssemogerere & 2 Others - vs - AG when they held that the method adopted by Parliament of "Ayes" and "Noes" in passing the impugned Act contravened Article 89 of the Constitution.
It should be noted that the Supreme Court in Constitutional Appeal No. 1 of 2002 (supra) never held that the passing of any ordinary Act by "Ayes" and "Noes" was unconstitutional.
The lead Judgment of the Hon. The Chief Justice, Ben Odoki, CJ, with which we agreed, stated that:
"In my opinion, the procedure provided in Article 257A does not apply to the amendment of the Constitution where a two - thirds majority of all Members of Parliament with voting rights is required to pass such amendment The procedure of voting by "Ayes" and "Noes" is incapable of proving with accuracy and certainty that the necessary numbers of Members of Parliament required to pass such important legislation have been obtained. The procedure may be applicable in deciding questions where only simply majority of Members of Parliament present and voting is required in non-contentious matters as provided under Article 89(1) of the Constitution."
In the instant case, the procedure adopted by Parliament in passing the impugned Act was in my view, constitutional and valid since the impugned Act never involved amendment of the Constitution.
Therefore, the Constitutional Court was in error when it held that the procedure adopted by Parliament in enacting the impugned Act contravened Article 89. Therefore, this ground must succeed.
I now turn to grounds 4, 7 and 8 of this appeal.
Ground 4:
"The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum which was held on 29th June 2000, was null."
Ground 7:
"The learned Judges of the Constitutional Court erred in law and in fact in holding that the 2ooo Referendum on choice of Political Systems was held in contravention of Article 69 of the Constitution."
Ground 8:
"The learned Judges of the Constitutional Court erred in law and in fact in holding that the people of Uganda in a Referendum held on 29th June 2000, never adopted a Political System under Article 69 of the Constitution."
In our unanimous decision of the court dated 2nd September 2004, we held that the referendum which was held on 29th June 2000, was validly held under the Constitution, because Articles 69 and 271 commanded the Country to hold a Referendum during the last month of the fourth year of the term of Parliament referred to in clause (2) of Article 271 so as to enable the people of Uganda to exercise their own rights to choose a political system of their choice. Article 69(1) provides that:
(7) The people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda.
(2) The political systems referred to in clause (1) of this article shall include:-
(a) the Movement Political System;
(b) the Multi-Party Political System; and
(c) any other democratic and representative Political System.
Article 271 (1) provides that:
(7) Notwithstanding the provisions of Article 69 of this Constitution, the first Presidential, Parliamentary, Local Government and other public
elections after the promulgation of this Constitution shall be held under the Movement Political System.
(2) Two years before the expiry of the term of the First Parliament elected under this Constitution, any person shall be free to canvass for public support for a political system of his or her choice for the purpose of a referendum.
(3) During the last month of the fourth year of the term of Parliament
referred to in clause (2) of this article, a referendum shall be held to determine the political systems the people of Uganda wish to adopt.
(4) Parliament shall enact laws to give effect to the provisions of this article.
On the three grounds which were raised before us, Hon. Amama Mbabazi, the Attorney General, submitted that the Constitutional Court had not been invited in the petition to determine that the referendum which was held on 29th June 2000, was either invalid or that the holding of it contravened any provisions of the Constitution. He further submitted that the Constitutional Court was never asked to determine whether the people of Uganda adopted a political system of their choice. Counsel contended that the Constitutional Court was therefore in error in holding that the referendum held was invalid for contravening article 69 of the Constitution when the Court had not been asked to nullify the referendum. He submitted that the Constitutional Court had only been asked to nullify the Referendum (Political Systems) Act No. 9 of 2000.
On the other hand Mr. Lule, counsel for the respondents submitted that the issue of invalidity of the referendum under Article 69 of the Constitution had been raised before the Constitutional Court in the Petition in paragraph 2(e) which stated:
"That the omission by Parliament to enact the Political Organisations Bill under Article 269 allowing political party activities has so thoroughly corrupted the democratic process that the fundamental right to free and fair elections cannot be provided in the referendum in contravention of Article 69 of the Constitution."
Mr. Lule submitted that Article 69 had to be read together with Article 269 which provided that until a law on Political organisations was put in place, people subscribing to multi party politics could not canvass and only views of one side, the movement could only be heard. Counsel contended that in the absence of such a law in place, there could be no choice of a political system under Article 69. The learned Justices of Constitutional Court held more or less unanimously that since there was no law made under Article 73 of the Constitution to free political parties from the restrictions imposed by Article 269, the referendum held on 29-06-2000, contravened Article 69.
I must commend the views which were persuasively expressed by the learned Justices of the Constitutional Court. However, it must be noted that these views had to be weighed against the mandatory provisions of Articles 69 and 271 of the Constitution which commanded that a referendum had to be held during the last month of the fourth year of the term of Parliament referred to in clause (2) of article 271. The referendum was held pursuant to those provisions despite the fact that no guidelines as stipulated by Article 73 had been put in place. The results of the referendum were not challenged and no one has ever challenged those results since the referendum was held on 29 June, 2000. As a result of the referendum, the affairs of the State have been conducted on that basis for all this time.
Consequently, I am persuaded by the very able reasons advanced by the learned Chief Justice, Mr. Justice Ben Odoki, CJ, in his reasons for our decision with which I entirely agree and endorse.
I therefore, find merit in grounds 4, 7 and 8 which should accordingly succeed.
Ground 14 concerns the doctrine of prospective overruling. It states:
"The learned Judges of the Constitutional Court erred in law and in fact in holding that the doctrine of prospective overruling could not apply to the Petition."
When we gave the decision of the Court we did not find it necessary to make a decision on the issue, because we had already held under ground 4 that the Constitutional Court was in error when it held that the Referendum which was held on 29-06-2000, was null. On that ground we held that although there was no law passed as required under article 271(4) of the Constitution for guidance in conducting free and fair Referendum, the referendum was validly held on the authority of articles 69 and 271(3) of the Constitution, because article 69 entrenched the right of the people of Uganda to adopt a Political System of their own choice, while article 271(3) fixed the period in a mandatory term, when the people would for the first time exercise that right in a referendum. The referendum was held on 29-06-2000, as required under article 271(3) of the Constitution.
As a consequence of that referendum, the conduct of which and the results thereof had not been challenged nor inquired into to determine if it was or was not free and fair, the Movement Political System was retained in place and the affairs of the State have been conducted on that basis for over 4 years.
Therefore, our decision on ground 4 of the Memorandum of Appeal renders ground 14, dealing with prospective overruling, irrelevant.
However, despite the above view, I must state that I respectfully agree with the opinion and views of the Hon. The Chief Justice Mr. Justice Ben Odoki, CJ, on the applicability of the doctrine of prospective overruling. On my part, however, the views and opinion of his Lordship and the authorities which he cited would be very relevant if the doctrine applied to the instant case, which in my opinion, never applied. However, these would be of immense value in future when relevant cases appear before court or for students of law. In the meantime, this ground had no merit and therefore had to fail.
It was for the above reasons that I agreed with the decision of the Court which we gave on 2nd September, 2004.
REASONS OF KANYEIHAMBA, J.S.C. FOR THE COURT'S JUDGMENT
We heard this appeal from 9th to 11th August, 2004, and reserved our judgment. In view of the urgency and importance of the issues involved in the appeal, we found it necessary to give our judgment and decisions at an earlier date than we had anticipated. On 2nd September 2004, our judgment was delivered with a summary of our reasons and it was then intimated that we would give our detailed reasons on a later date. Whereas we were unanimous in our judgment, we differed on some of the reasons for the decisions and I find it necessary to comment on them. I have also had the benefit of reading in draft the excellently argued reasons given for the same judgment by the learned Chief Justice Odoki, and I agree with him in so far as I do not express a contrary opinion in my own reasons on any of his.
There were 14 grounds of appeal filed before us. The learned Attorney General abandoned ground 1 and 13 of the appeal. Following his submissions and arguments on all other grounds, the Attorney General intimated that ground 12 had been covered in the submissions in support of the rest of the grounds and that he did not wish to address us on separately. After hearing submissions and arguments of counsel for the parties, and applying the same to the record of proceedings and laws applicable, we found no merit in grounds 2 and 3 and accordingly dismissed both of them. We next considered grounds 5 and 6 and dismissed them on the grounds that the passing of the Referendum (Political Systems) Act No. 9 of 2000 by Parliament was in contravention of the Constitution. We also observed that giving that Act retrospective effect and validating whatever was done under it even if bona fide, was contrary to the provisions of the Constitution.
We next considered grounds 9, 10, and 11 and found merit in 10 and 11. First, I am constrained to observe that in their submissions on methods of voting in Parliament, counsel for the appellant had all along contended that our opinions which we expressed on the matter in Constitutional Appeal No. 1 of 2002, Paul K. Ssemogerere & Others v. The Attorney General (S.C), (unreported), had been obiter. In my opinion, this was a misreading of our judgment. Besides what we cited from the learned Chief Justice, Odoki, in our judgment in this appeal, in the lead judgment in Constitutional Appeal No. 1 of 2002, I said;
"I am constrained to state in the clearest of terms that the procedural rules and mode of ascertaining majorities for effecting constitutional amendments are not found in the Constitution (Amendment) Act 13 of 2000 but in the provisions of the Uganda Constitution of 1995 itself It is evident therefore that the two thirds majority of all members of Parliament required for the second and third readings of a bill to amend the Constitution cannot be ascertained by voice voting under the parliamentary practice of using shouts of "Ayes" or "Noes" to indicate consent or dissent, respectively. In my view, for constitutional amendment, the voting in Parliament should be determined by the head count of members in favour of and against the amendment at the second and third reading by lobby division or such other mode as can ascertain that the supporters of the amendment are two thirds of the total number of Members of Parliament. In my opinion, it is the strict observance of the constitutional rules of procedure for determining the will of the majority in Parliament that will create and nurture a culture of belief in Ugandans that they are truly and democratically represented and governed."
In the same appeal, my learned brother, Oder, J.S.C. said,
"it is my view that the Constitutional procedural requirements for the enactment of legislation for amendment of the Constitution are mandatory conditions which cannot be waived by Parliament as mere procedural or administrative requirements. They are conditions to be complied with. Mandatory Constitutional requirements cannot be simply waived by Parliament under its own procedural rules. It is also my considered opinion that had the learned D.C.J, and Justices of Appeal found that Act/2000 amended Articles 28, 41, 44, 128 and 137(1) and (3) they would have found that the Constitutional procedural requirements under Articles 258, 259, 260(1), 262(1) and (2) were mandatory and that Parliament should have complied with them in enacting Act 13/2000."
The other learned Justices of the Supreme Court, (Tsekooko, Karokora, Mulenga, JJ.S.C. and Byamugisha, Ag. J.S.C.) concurred with the judgments of the learned Chief Justice, Odoki, of Oder, J.S.C and mine, in so far as this matter is concerned. Thus, the court was unanimous in agreeing with the opinion ably expressed in the judgment of the learned Chief Justice which I referred to earlier in these reasons.
In any event, we upheld the decision of the Constitutional Court on ground 9 by reason of the fact that a committee of the whole house is not a standing committee within the meaning of Article 90 of the Constitution. On grounds 10 and 11, we reversed the decision of the Constitutional Court. We found that there was merit in those two grounds. However, as will be seen later, I will have a little more to say on those two grounds by way of different reasoning. We next considered the submissions on grounds 4, 7 & 8, and allowed them, holding that in the absence of a valid law the referendum could have been validly held under Articles 69 and 271(3) of the Constitution.
While I agree that grounds 4, 7 and 8 succeed, I do not agree that the court has discretion in regard to the declaration it has to make.
The Constitution of Uganda in Articles 69 and 271 obliges the country to hold a referendum so as to enable the people of Uganda to exercise their right to choose and adopt a political system of their own choice.
Thus, Article 69 provides:
'The people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda."
Then, Article 271(1) provides that,
"Notwithstanding the provisions of Articles 69 of this Constitution, the first Presidential, Parliamentary, local government and other public elections after the promulgation of this Constitution shall be held under the Movement Political System.
271(2)
271(3) during the last month of the fourth year of the term of Parliament referred to in clause 2 of this article, a referendum shall be held to determine the political system the people of Uganda wish to adopt."
The combined effect of the provisions I have reproduced above is that it was imperative and compulsory to hold a referendum before the expiry of the term of Parliament which was elected in 1996. The two Articles of the Constitution provided guidelines for the holding of that referendum. According to Article 69, the referendum had to be free and fair. The referendum was held on 29th June, 2000. Its results were generally accepted in the country. They were not challenged in court. For a period of some four years, no one filed any petition to have the referendum or its results invalidated. I was therefore not persuaded by the arguments advanced by Mr. Lule, lead counsel for the respondents, that since the respondents intended to challenge the validity of the Referendum (Political Systems) Act, it was not necessary and indeed, it would have been futile to challenge the referendum itself or its consequences. In my view, that argument was in error since the referendum was held and had to be held directly under the provisions of the Constitution which have never been legally challenged ever since its promulgation in 1995. Since the referendum was a Constitutional requirement, it could only have been challenged on the ground that it was unconstitutional.
Article 271(2) and (4) provided the timetable and steps to be taken before the holding of the referendum. For instance, before the holding of the referendum, any person would have been free to canvass for public support for a political system of his or her choice for purposes of the referendum. The evidence before the Constitutional Court which heard the petition that resulted in this appeal was that some members of one political party, namely the Democratic Party were prevented from canvassing. Credible as it may be, this evidence was insufficient.
This may be illustrated by an imagined mandatory Law of Utopia by which all residents on side A of a lake must cross to its B side by a named date. The same law also provides that the Utopia Parliament shall provide an oceanliner to give the residents comfortable means of crossing the lake before the named date. Unfortunately, Parliament fails to provide an oceanliner or provides one which leaks. In that event, the residents affected would have the right to use any other available means to comply with the law. They may use a canoe or a log raft. They may use an aircraft or if need be, swim across the lake in order to beat the deadline. The obligation to cross the lake and be on side B is a superior obligation compared to the desirability that Parliament provides the means by which the residents shall cross the lake in comfort. Once, the residents are safely on side B of the lake, the means by which they achieved the constitutional obligation becomes of secondary importance.
Similarly, under the Constitution, the obligation imposed by the provisions of Articles 69 and 271 for the people of Uganda to vote in a referendum and determine the political system by which they will be governed is superior to the requirement that Parliament shall provide a procedure by which that referendum shall be held. The other requirements were that the referendum would be free and fair and be preceded by free campaigns. However, as observed earlier, these requirements were not disputed until much later when the respondents prosecuted their petition in the Constitutional Court from which this appeal arose.
For the foregoing reasons, I am of the opinion that the Constitutional Court erred in holding that the referendum which was held on 29th June, 2000 was in contravention of the Constitution. I would set aside declaration (b) of that court which held that the referendum under the Referendum (Political Systems) Act, 2000 before passing a law under Article 269 to set free political organisations contravened Article 69.
In my view, the said referendum was validly held and its results are binding and in force by virtue of the provisions of Articles 69(1) and 271(1) and (3) of the Constitution. Nothing further need be said. Consequently, with great respect I do not share the majority opinion of my colleagues which is implicit in the following words,
"To declare the referendum a nullity would have far reaching consequences. In our view, these were compelling circumstances in respect of which the Constitutional Court ought to have exercised its discretion to decline granting the second declaration ",
when those circumstances are not based on any sound and firm legal foundation.
In my view, constitutional principles and rules should always be interpreted objectively and impartially without regard to consequences except in very exceptional circumstances which do not exist in this appeal. It would be an error to construe constitutional provisions on the basis of what that construction might lead to. It is untenable in a case of this nature to suggest that the Constitutional Court or any other court has or can exercise discretionary powers and decline to grant a remedy sought by a petitioner or litigant on the basis of some extraneous issues other than judicial and constitutional.
It may be recalled that in the 2000 U.S.A. Presidential elections, the candidate who was eventually rewarded by the fortunes of discretion was George W. Bush following problems in the electoral system of one state, namely Florida. The U.S.A. Constitution gives every eligible citizen the right to vote and with other voters to determine who will be the next President of the U.S.A. The people of Florida exercised their basic constitutional right and voted. However, the electoral laws and practices of the state of Florida which are subordinate to the U.S.A. Constitution that grants the right to vote, appear to have slow and cumbersome procedures when it comes to counting the votes cast in Presidential elections. They also fix a date when the counting of those votes should be ended. It is not inconceivable that officials who fear that one Presidential candidate whom they do not wish to see win is favoured by the Florida voters, to delay or put other obstacles in the way of counting the votes so as to frustrate that candidate's chances of winning nationally in favour of the candidate most favoured by them. Indeed, that is exactly what happened in that election as evidenced by the respective rulings of the Supreme Courts of Florida and the U.S.A in Bush v. Gore (00 -949) and George W. Bush petitioner v. Palm Beach County Canvassing Board, et.al (No. 00.836), December 2000.
By the time the deadline for counting the votes passed, hundreds of votes had not yet been counted. The matter became contentious as to whether the counting of the votes should stop or continue after the closing date of the counting. One would have thought that the right to cast a vote and choose a President was more important than the administrative competence or incompetence of counting those votes. The matter went to courts. Both the courts in Florida and the Supreme Court of the U.S.A. exercising their respective discretions gave conflicting opinions as to whether the counting should stop or be continued.
Articulating the respective views of both sides, Justice Breyer, one of the dissenting Justices in George.W. Bush Vs. Albert Gore No. 00-949 of December 12, 2000, having observed that the political implications of the case were momentous for the U.S.A, continued;
"Nonetheless, there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes ... The majority justifies stopping the recount entirely on the ground that there is no more time ... But the majority reaches this conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed by the Florida Supreme Court .... By halting the manual recount, and thus ensuring that the recounted legal votes will not be counted under any standard, the court crafts a remedy out of proportion to the \ asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect."
Many other examples of how judicial discretion can be used to frustrate legitimate rights of petitioners and litigants can be found and cases cited. Cases such as R. v. Halliday, ex parte Zadig [1917] A.C. 260, Liversidge v. Anderson [1942], A.C. 206, and the laws and decisions made following the final determinations in Burmah Oil Co. v. Lord Advocate [1965] A.C. 75, Republic v. Micheal Kamaliza and Others, Crim. Sess. Case No. 103 of 1970, and Ibingira and Others v. Uganda [1966], H.C. Crim. Sess.306, are some of the examples. It is for this very danger and the desire to uphold constitutionalism and good governance that, with great respect, I differ from the view that the Constitutional Court should have exercised its discretion to decline to grant a remedy.
In these reasons, I have endeavoured to emphasise the supremacy of the Constitutional provisions in Articles 69 and 271. Where Parliament is required to make a law to implement those provisions smoothly and fails to do so or makes a law which is null and void, that failure does not, per se, invalidate or affect the implementation or enforcement of the same provisions if such implementation or enforcement is done under some other scheme or regulations not outlawed by the Constitution itself.
I will now discuss ground 14 of this appeal. In my opinion, ground 14 was an important and controversial alternative ground to have been included in the Memorandum of Appeal in this case. This is the ground which required the court to hold that what had been effected under the impugned referendum Act should be validated and become effective under the doctrine of prospective overruling. Its import and potential consequences are so enormous that Counsel for the parties made extensive, elaborate and powerful arguments for and against it and cited a number of authorities in favour or against the propositions advanced for either side. In my view, this court ought to have pronounced itself on it in our judgment of September, 2004.
Be that as it may, It was submitted on behalf of the learned Attorney General that notwithstanding the declaration by the Constitutional Court that the Referendum (Political Systems) Act, 2000, was unconstitutional and therefore null and void, all the same, that court ought to have applied the doctrine of prospective overruling and validated the acts and decisions which were done or reached under it before that declaration, especially those which were bona fide.
It was further contended on behalf of the appellant that failure to apply that doctrine was contrary to public policy and national interest because the declaration would affect schemes that had been set up bona fide on the legitimate assumption that the Act had been constitutionally and validly passed by Parliament. Counsel contended that certain rights and obligations had been created under the impugned Act and were in operation. To uphold the decision of the Constitutional Court that whatever was authorised under the invalidated Act was also null and void and inoperative would lead to manifest absurdity and result in dire and undesirable national consequences. Counsel for the appellant cited the majority decision in the USA. case of State of Wisconsin v. Waylon Picotte, No. 01-3063, Croi-3063 CR of 2003; State v. Esser, 16 Wis. 2d 567, 115 N.W. 2d. 505 (1962); United States v. Chase, 18r. 3d. 1166, 1172,
(4 Cir. 1994); American and English Encyclopaedia of Law, Vol. 6, p. 289, Baker v. Carr, 369 US. 186 (1962); Interpretation Act, Cap. 3 and the House of Lords, Practice Statement published in [1966] IWRL. 1234, amongst others.
For the respondents, Mr. Lule, S.C, opposed ground 14. He contended that once an Act of Parliament has been declared null and void nothing done under it can be held to be valid since to do so would be validating the very Act which has been impugned. He contended that the effect of declaring a law null and void is to say that that law is invalid ab initio. A law which is void ab initio cannot confer on anyone or some authority, rights or obligations or create schemes. Any of such perceived consequences would be stillborn. Counsel for the respondents cited the following authorities in favour of his submissions; J. Beatson and M.H. Mathews: Administrative Law: Cases and Materials, Clarendon Press, Oxford; Franklin v. Minister of Town and Country Planning, [1948] A.C. 87, S.A. De Smith's Judicial Review of Administrative Action, 4th ed. pp. 250-266, S.G.G. Edgar's Craies on Statute Law, 7th ed. Sweet & Maxwell, 1971, pp. 352-401.
We held that the referendum which was held in 2000 and its consequences were valid and constitutional, not because they were held under the Referendum (Political Systems) Act, 2000, but because they were in compliance with the obligatory requirements of the Constitution and in fulfilment of the mandatory provisions of Articles 69 and 271. In effect, we were not validating anything. We were simply applying the Constitution and construing its provisions.
The determination of ground 14 calls first for an understanding of what is meant by void and nullity. In their 8th Edition of Wade's "Administrative Law, 2000", published by Oxford University Press, the learned authors, H.W.R Wade and C.F. Forsyth describe a nullity or a law which is void as,
"An Act or other order which is a nullity, utterly without existence or effect in law. That is the meaning of void, the term most commonly used. In several decisions, the House of Lords has made it clear that there are no degrees of nullity and that errors such as bad faith, wrong grounds, and breach of natural justice all necessarily involve excess of jurisdiction and therefore a nullity."
I agree with the learned authors on this matter. English jurisprudence from which Uganda draws a great deal of experience is rich in decisions to the effect that in public law, void and nullified statutes hardly ever confer rights or obligations beyond their judicial graves. In cases such as Anismic Ltd. V. Foreign Compensation Commission, [1969] 2 A.C. 147, Ridge v. Baldwin [1964] A.C. 40 and Credit Swiss v. Allerdale B.C. [1997 Q.B. 306, the House of Lords and other English courts are cited with approval for the majority proposition that judicially nullified laws confer no rights from beginning to end. Thus, in Hoffmann La Roche & Co. v. Secretary of State for Trade and Industry [1975] A.C. 295, at 365, Lord Diplock said,
"It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any less consequence in law than to render the instrument incapable of ever having had any legal effect."
In the same case, the court held that the court's judgment that an Act is a nullity operates erga omnes, that is against everyone concerned.
In Boddington v. British Transport Police [1999] 2 A.C. 143 at 158, Lord Irvine, L.C. said that when an Act or a regulation has been pronounced by the court to be unlawful, it is then recognised as having had no legal effect at all.
The doctrine of prospective overruling may be contrasted with that of retrospective legislation. In reference to one of the authorities cited in support of the arguments in favour of the doctrine of prospective overruling, namely the Wisconsin v. Waylon Pictotte case, the court was split and one of the opinions expressed was:
"Permitting retroactive application of expended criminal laws as a general proposition threatens the liberty and interests of everyone within a free and open society."
In 2001, in the case of Rogers, 532 US. 451 the Supreme Court of the U.S.A stated,
"We conclude that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect".
In my view, the doctrine of prospective overruling which has the effect of validating what is illegal should never apply to legitimize what was done mala fides.
I have had the benefit of reading the reasons given by the learned Chief Justice, Odoki for our judgment in this appeal. The Chief Justice has dealt with and discussed authorities from diverse jurisdictions including those of the U.S.A. the U.K, Malaysia, India and South Africa stating, expounding and elaborating upon the concept and use of the doctrine of prospective overruling.
Most of the cases and opinions cited in favour of the doctrine relate to administrative acts and decisions in which discretionary powers are exercised and are so exercised to determine rights and obligations in personam or relate to criminal justice. In an administrative act, the court may exercise discretion and refuse to grant the necessary legal remedies that would follow from that act being declared null and void. Thus, in the English case of Smith v. East Elloe RDC, [1956] A.C. 736, it was held that an administrative order however void, becomes valid for practical purposes where a statutory time limit expires after which its validity cannot be questioned. The rationale here is clear. The statute does not make the order valid. It simply terminates the time in which a remedy could have been granted. Nevertheless, even in administrative law where the exercise of discretionary powers is a common feature, the degree and range of applying prospective overruling are severely limited. In his Judicial Review of Administrative Action, Fourth Edition, S.A. de Smith observes;
"Void acts and decisions are indeed usually destitute of legal effect; they can be ignored with impunity; their validity can be attacked if necessary, in collateral (or indirect) proceedings; they confer no legal rights on anybody."
The learned author concedes to a number of exceptions such as the validation of voidable actions on such grounds as time limits, consent, waiver or acquiescence of parties. He also observes that the same principle of prospective overruling has been discerned in collateral and statutory remedies such as those relating to habeas corpus proceedings and orders of compulsory purchases. He then concludes,
"In practice, the courts have sufficient room for manouevre to be able to avoid being driven to reach unsatisfactory conclusions by the pressure exerted by conceptual reasoning. The adverse meanings and implications of voidness and the elasticity imported by the discretionary nature of most of the judicial remedies, are apt to generate uncertainty and indeed exasperation."
In my view, the issues raised in ground 14 even if admitted should, in Uganda, be confined to criminal justice, administrative actions and other cases where discretionary powers and decisions relating to res in personam abound. The doctrine should have no place in constitutional disputes where the courts' role should be confined to empirical declarations of law and the precise interpretation of constitutional provisions in a prudent, impartial and objective manner. To widen the operation of the doctrine of prospective overruling to cater for constitutional challenges in an evolutionary jurisprudence such as that of Uganda would open the floodgates for the arbitrary amendments of every Article and Clause in the Constitution. There would be great expectations and belief among those intent on effecting the amendments that even when they do so unconstitutionally and capriciously, what they will have done will be valid and binding notwithstanding that the same amendments are later judicially pronounced null and void and to have been engineered through bad faith.
My reasons for not accepting the use of the doctrine of prospective overruling so readily are simple to discern. In his scholarly and illuminating discourse contained in the reasons for the court's judgment in this appeal, the learned Chief Justice, Odoki, has cited authorities in support of the doctrine of prospective overruling. The analysis and reasons given are strong and persuasive. The Chief Justice concludes with the caution which I partially agree with to the effect that:
"It appears to me that the doctrine of prospective overruling is a relatively new principle which has been developed in various jurisdictions under different circumstances and which may be applied in Uganda after careful consideration. It is a useful remedy which is based on judicial discretion to do justice in each case to preserve the values and goals explained earlier in this judgment, which include the preservation of the rule of law and a stable constitutional order and the prevention of chaos and anarchy. The doctrine should be further developed in Uganda to clarify its scope and application in future."
As already noted, with a few exceptions, the authorities and opinions ably examined by the learned Chief Justice, were concerned mainly with criminal cases and administrative actions where justice, discretionary powers, vested rights, obligations and liabilities call for the invocation of the doctrine of prospective overruling. It is in the area of constitutional affairs that society endeavours to avoid occurrences of chaos and anarchy, if any. However, in my opinion, even in the unlikely event of chaos or anarchy threatening, the use of prospective overruling should only be resorted to when all other possible options such as conferences for alternative resolutions, elections and resignations of the defaulters have been fully explored and exhausted. In my opinion, it should only be used after the rights, obligations and the schemes it is intended to save have existed for a long time and where the irregularity or illegality had occurred inadvertently and not deliberately induced or encouraged.
In the developed countries where the largest number of examples on the doctrine of prospective overruling are derived, the doctrine is often utilised under a background of where governments and public authorities which are largely subject to accountability, act wrongly or unconstitutionally but honestly and without sinister motives. Such schemes, rights and obligations arising under impugned laws and measures have gone on for years undetected and it is only later that someone or a body discovers that not everything was done according to the strict rules of law. It is in such situations, that it is perfectly legitimate and understandable to salvage them under the doctrine of prospective overruling. On the other hand, in the developing countries of which Uganda is one, decisions to bypass proper methods of making law or of amending constitutions are deliberately and knowingly taken. Sometimes they are effected arrogantly with impunity and against professional advice.
In some countries, constitutions are perceived by those in power, not as protectors of the human rights and the liberties of the individual but as instruments for legitimizing the exercise of power. For the opponents of these rulers, constitutions are understood in terms of the government's legitimacy to exercise arbitrary power, to impose restrictions on certain freedoms and rights and to do whatever the rulers deem necessary firstly, for their survival and secondly, in what they deem to be the interest of society. In effect, the application of the doctrine of prospective overruling has the same characteristics and effects as the application of an effective revolution otherwise known as a species of the Kelsenian theory of the grand norm. This stipulates that where a constitutional order is violently or otherwise overthrown and its replacement is acquiesced in and accepted by state officials, judges and the general public, the replacement becomes the new constitutional order. For many years, this was a persuasive realization of the legal consequences of successful revolutions. It was invoked in Pakistan in the case of The State v. Dosso P.L.D. 1958 S.C 533; in Uganda in the case of Uganda v. Prisons Commissioner, ex p. Matovu [1966] EA 514 and in Zimbabwe when it was still known as Rhodesia in the case of R. v. Ndhlovu 1968 (4) SA 515.
The makers of the Uganda Constitution of 1995 outlawed the Kelsenian theory of the grand norm by including in that constitution Article 3 which reads;
3. (1) It is prohibited for any person or group of persons to take or retain control of the Government of Uganda, except in accordance with the provisions of this Constitution. (2) Any person who, singly or in concert with others, by any violent or other unlawful means, suspends, overthrows, abrogates or amends this Constitution or any part of it or attempts to do any such act, commits the offence of treason and shall be punished according to law.
(3) This Constitution shall not lose its force and effect even where its observance is interrupted by a government established by the force of arms; and in any case, as soon as the people recover their liberty, its observance shall be re-established and all persons who have taken part in any rebellion or other activity which resulted in the interruption of the observance, shall be tried in accordance with this Constitution and other laws consistent with it.
(4) All citizens of Uganda shall have the right and duty at all times -
(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to overthrow the established constitutional order; and (b)to do all in their power to restore this Constitution after it has been suspended, overthrown, abrogated or amended contrary to its provisions.
(5) Any person or group of persons who, as required by clause (4) of this article, resists the suspension, overthrow, abrogation or amendment of this Constitution commits no offence.
(6) Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be considered void from the time it was imposed and that person shall be taken to be absolved from all liabilities arising out of the punishment.
Article 3 was further inspired by the knowledge that in Africa there had been massive violations of human rights and blatant disregard of constitutional obligations, with some courts tending to uphold the government's side on controversial issues. Thus, one judge of the former Court of Appeal for Eastern Africa made remarks which are reported in 2 EA.L.J [1969], as follows;
" I ask you to imagine what might happen if the courts of a newly emergent nation, in which the rule of law is not a settled way of life either on the part of the executive and the people, were by their judicial decision to enter the political arena."
In common law countries, rules of equity and construction have been developed and are applied in order to avoid awkward situations that may arise as a result of interpreting laws literally. These rules include the literal rule, the golden rule, the mischief rule as well as the ejusdem generis rule. The doctrine of prospective overruling is a potential rule that is knocking at the jurisprudential door to be admitted and operate along the ones I have enumerated. As the learned Chief Justice Odoki rightly observes in his reasoning, it is still in its formative stages even in the developed countries that claim to have mature jurisdictions.
The doctrine of prospective overruling as a device is pleaded in order to give courts an excuse not to displease an impatient executive or inattentive legislature either of which may deliberately depart from the dictates of constitutionalism. Justice A. Aguda writing in Essays On Third World Perspectives In Jurisprudence, 1978, astutely observed; "It would, of course, be erroneous and catastrophic if judges in developing countries accepted the formalistic interpretation of the Rule of Law, and thus, stood aloof while countries fall into the errors of South Africa (before that country was liberated from Apartheid), and Idi Amin of Uganda and Bokassa of the Central African Empire. Whilst admittedly it may not be the duty of the judge to consider the rightness or wrongness of a law especially an eroded law, a judge in a developing country must regard himself (or herself) to the extent possible, as the bulwark against tyranny and oppressive laws. He must continuously remind himself (or herself}
of the assertion by the International Commission of Jurists, that 'The Rule of Law is of universal validity and application as it embraces those principles of justice which are considered minimal to the assurance of human rights and the dignity of man'."
The developing countries with delicate and evolving jurisdictions ought to hesitate long before embracing the doctrine of prospective overruling.
In my opinion, the doctrine is presently unsuitable to resolve the issues which arose in this appeal nor would it be desirable to apply it to similar or other constitutional disputes in the near future.
For the reasons I have given, I would dismiss ground 14 of the appeal.
It was for the reasons I have given that I agreed that the appeal should partially succeed. I would order that each party bears its costs of this appeal while the respondents get half the costs in the Constitutional Court.
REASONS OF OGOOLA, AG. JSC, FOR THE JUDGMENT OF THE COURT
1. This is an appeal by the Attorney General against the decision of the Constitutional Court of Uganda, in which the Constitutional Court upheld the Respondents' Constitutional Petition No. 3 of 2000, by declaring null and void the Referendum (Political Systems) Act, 2000, Act No. 9 of 2000 - herein referred to as the "Referendum Act". The Attorney General being aggrieved by the above decision of the Constitutional Court, appealed to this Court on the basis of fourteen grounds of appeal. We heard the appeal from 9th to 11th August, 2004; and delivered our decision, together with a summary of the reasons for that decision, on 2nd September, 2004. We reserved the detailed reasons for our decision to be given on notice at a later date. I now give the reasons for my having joined in this Court's unanimous decision of 2nd September, 2004.
2. I have read in draft, the excellent reasons of the learned Chief Justice, BJ. ODOKI for this Court's decision of 2nd September, 2004; as well as the separate reasons of the other learned Justices of this Court. I agree with the overall thrust of these reasons - each of which I found to be highly illuminating to the general philosophy of our law and to be totally fair and just to the resolution of the specific dispute at hand.
A detailed articulation of the background, the facts, and the issues in this case was presented in the decision of the Court, and has been lucidly and comprehensively elaborated in the judgments of the other Justices on the coram. I will not repeat them here. In view of the above, I will not dwell on the matter beyond what is absolutely necessary. I adopt the detailed reasons adduced by their Lordships for supporting our decision of 2nd September, 2004. I will, therefore, only seek to throw a little more light onto three rather murky areas of the debate on which I feel quite strongly that this Court needs to pronounce itself with deeper introspection and higher precision for the greater edification of our jurisprudence.
I. Non-existing dispute, non-existing Statute
3. The Attorney General's second and third grounds of appeal were to the effect that the Constitutional Court erred in law and in fact in deciding on a petition challenging a non-existing dispute on the basis of a non- existing law. Mr. Joseph Matsiko, learned counsel for the Attorney General, contended that at the time when the Constitutional Court heard the petition, there was no dispute between the parties in as much as the Referendum Act was no longer an Act of Parliament for it had expired on 29th June 2000 (the date when the referendum was held). Therefore, the law being dormant, it could not breach the Constitution. For these contentions, he relied on Kawoya Joseph vs
Uganda, Criminal Appeal No. 50 of 1988, and Attorney General vs Rwanyarare, SC Constitutional Appeal No. 2 of 2003.
4. However, in my view, the sequence of events gives a completely different picture. The Referendum Act was enacted on 7th June, 2000. It was assented to on 9th June, 2000, and published in the Uganda Gazette on 12th June, 2000. However, it was made to come into force retrospectively on 2nd July 1999. It was still in force on 22nd June 2000 when the Respondents filed their Petition No. 3 of 2000 in the Constitutional Court to challenge the validity of that Act. The Constitutional Court heard that Petition on 28th April, 2004 - having postponed its hearing from as long ago as 17th October, 2000. That extraordinarily long adjournment of 3 years and 10 months was occasioned by the then pending outcome of another Constitutional Petition (No. 7 of 2000). The learned counsel for the Attorney General contended that by the time the Constitutional Court heard the Petition, on 28th April, 2004, the referendum had already been held way back on 29th June 2000; and the Referendum Act had similarly expired on that same date of the referendum (i.e. 29th June, 2000) - having achieved its full purpose and effect.
Mr. Godfrey Lule, the Respondents' counsel robustly challenged the Attorney General's above contentions. He submitted that on the date of the referendum, the Referendum Act was still in force. That, indeed, the Respondents' Petition No. 3 of 2000 (filed on 22nd June 2000) was a preventive measure intended precisely to stop the holding of that referendum on 29th June 2000 - the Petitioners' cause of action being rooted in Article 50 and Article 137 (3) of the Constitution.
5. In our decision of 2nd September, 2004, we found the Respondents' arguments to be persuasive and supported by the law. Certainly, the Referendum Act did not expire on 29th June 2000 (the day of the referendum). This is so because of the very many factors that have been exhaustively presented in the separate reasons of TSEKOOKO, JSC. Chief among these factors, however, are two. Firstly, section 17 (1) of the Referendum Act gave registered voters ample time after the referendum to challenge the results of that referendum - namely, 30 days after the publication of those results in the Gazette. The results of the referendum were published in the Uganda Gazette of 28th July, 2000 pursuant to section 9 of the Referendum Act. It is quite evident, therefore, that at least for the purposes of giving effect to the requirement of section 9 (to gazette the results of the referendum), the Referendum Act did not and could not expire prematurely on the day of the referendum (29th June, 2000).
Its life continued to 28th July, 2000 (the day of gazetting the results); and, thereafter, for at least 30 days to 28th August, 2000 (the last day allowed for registered voters to petition the High Court challenging the results of the referendum). Indeed, section 17(6) of the Act, gave a further 30 days (to 28th September 2000) for the High Court to hear and dispose of the voters' petitions.
6. Secondly, section 8 of the Referendum Act, authorized a repeat of the referendum in the event that no side obtained the required majority in the referendum of 29th June, 2000. Similarly, section 17 (3) authorized the holding of a fresh referendum in the event that the High Court annulled the referendum of 29th June, 2000. The fresh referendum would have to be held up to 90 days after the annulment (i.e. up to 28th December 2000) - counting from 29th September 2000 (the last day for the High Court to dispose of petitions). From the above two examples alone - not to mention the many other factors analyzed in the separate reasons of TSEKOOKO, JSC - it is quite plain that the Referendum Act did not expire and could not have expired on the day of the referendum. On the contrary, the requirements contained in the various provisions of that Act (notably Sections 8,9 and 17), did breathe new life into the Act for (at the very least) 6 more months after the date of the referendum. However, for the purposes of Appellant's grounds 2 and 3, all that this Court needed for persuasion was that the Referendum Act was still alive on 22nd June, 2000 (the date of the filing of the Petition in the Constitutional Court). It is for these and allied reasons, that this Court held in our decision of 2nd September 2004 that the contentions of the Attorney General's second and third grounds of appeal must fail.
II. Reference of a Bill to Parliament's Committee of the Whole House
7. Another issue was raised in grounds 9 and 10 of the Appellant's grounds of appeal. It concerned the question whether Parliament's reference of the Bill for the Referendum Act to the Committee of the Whole House (instead of to a Standing Committee of Parliament) rendered the Act unconstitutional — for being inconsistent with Article 90(1) and (3) of the Constitution?
In my view, the reference of that Bill to the Committee of the Whole House did not render the resulting Act unconstitutional. Firstly, by referring the Bill to the Committee of the Whole, Parliament did achieve the intent of article 90 (3), namely: to have the Bill discussed by a Committee of Parliament In this regard, it was common knowledge, uncontroverted by none at all, that the Committee of the Whole House is indeed not a Standing Committee of Parliament appointed as such pursuant to article 90 (1). Rather, it is a Committee sui generis, constituted under rule 107 of the Rules of Procedure of the Parliament of Uganda.
8. True, the Committee of the Whole House is a permanent (not a standing) committee; and it consists of all the members of Parliament - unlike Standing Committees which, under article 90(2)(a), consist of members elected from among members of Parliament at an election held during the first session of Parliament. Nonetheless, I find no Constitutional difficulty in what Parliament did with the Bill for the Referendum Act - namely, referring that Bill to the Committee of the Whole House - given that the functions of the Committee of the Whole House are similar to the functions of the Standing Committees. Article 90 (1) of the Constitution spells out the underlying function of Standing Committees, thus:
"Parliament is empowered to establish committees necessary for the efficient discharge of its functions, "[emphasis added]
The functions of the Committee of the Whole House are stipulated under rules 105 (1), 106 (1), 107 and 108 of the Rules of Procedure of Parliament. These rules provide for a reference of every Parliamentary Bill (after its Second Reading) to the Committee of the Whole House for discussion of the details (i.e. not mere principles) of the Bill. Rule 107 stipulates that:
"(1) Whenever the Committee Stage of any Bill is reached, the Speaker shall leave the Chair without putting any question and the House shall then resolve itself into a Committee of the Whole House."
Rule 108 on the other hand, prescribes the detailed procedure governing the Committee of the Whole House when considering a bill. The Committee considers the bill clause by clause, including any amendments proposed by other Committees (e.g. Standing, Select, Sessional or Ad hoc Committees) to which the bill was first referred.
The Committee of the Whole House then reports back to the House, whereupon the House in plenary proceeds to the Third (and final) Reading of the Bill - see rules 110 and 111 of Parliamentary Rules of Procedure. As will readily be seen from the above analysis, the function of the Committee of the Whole House in discussing Bills is on all fours with the identical function of the Standing Committees which, as specified under article 90 (3), includes the following:
"(a) to discuss and make recommendations on all bills laid before Parliament."
9. From all the above, it is quite clear that as a purely technical matter of form, the Committee of the Whole House is not the same creature as a Standing Committee. However, putting matters of form aside, and looking at the situation from a substantive point of view, the Committee of the Whole House is not at all different from a Standing Committee. The raison d'etre of both Committees is primarily:
(i) to scrutinize and discuss bills, at the intermediate stages of the legislative cycle, before Parliament in plenary enacts them into final legislation; and, thereby
(ii) to assist Parliament to discharge its functions efficiently.
In this connection, it is important to recall that in these matters the law upholds substance over form. That doctrine is clearly understood and readily applied, especially in matters of taxation. In this regard, two cases of the Canadian Supreme Court are immensely instructive. In Dominion Taxi Cab Association vs MNR [1954] SCR 82, the Court held that:
"It is well settled that in considering whether a particular transaction brings a party within the terms of the Income Tax Act, its substance rather than its form is to be regarded"
In similar vein, in the recent case of Placer Dome Inc vs Canada [1992] 2 CTC 98 at 109, the Canadian Supreme Court held that:
"It is the substance of a transaction that must be looked at in order to determine the true legal rights and obligations of the parties."
In Uganda, the essence of the above doctrine has been elevated to a Constitutional principle, under Article 126 (2) (e) which provides that: "(e) in the adjudication of cases... the courts shall dispense substantive justice without undue regard to technicalities".
10. Moreover, in the instant case before us, contrary to the requirement of article 90 (1) of the Constitution, the Sixth Parliament did not at the opening of its first session elect and constitute any Standing Committees. There was thus a total vacuum at the time of debating the Referendum Bill regarding the existence of the requisite Standing Committees. Accordingly, during the debate of the Bill on 7th July, 2000, it was Constitutionally too late to appoint a Standing Committee. Perhaps Parliament could have appointed a Select Committee (rule 155) or a Sessional Committee (rule 123) or even an Ad hoc Committee (rule 157) - but all these would not have been the Standing Committees stipulated under article 90 of the Constitution.
Alternatively, Parliament could have chosen to shelve the matter and leave it for the succeeding Parliament (the Seventh) to elect the requisite Standing Committees during its first session. But that would have breached the Constitutional deadline of article 271 (3) to hold the referendum "during the last month of the fourth year of the term of the [Sixth] Parliament". In these circumstances, Parliament could not have simply sat back, folded its hands in despair, and recklessly allowed its work to go into paralysis by the absence of those Standing Committees. No. Parliament did the only logical, practical, and sensible thing to do in the peculiar circumstances of the impugned Act. It referred the bill for that Act to the only constituted Committee of Parliament (namely, the Committee of the Whole House), to carry out its duly authorized function of scrutinizing and discussing the bill in detail, before Parliament could in plenary pronounce itself with finality on the matter. Therefore, for anyone to see a Constitutional problem in Parliament's practical resolution of that particular conundrum, is to perceive a mirage in the technical wilderness of Parliamentary procedure.
11. Furthermore, the Committee of the Whole House comprises the entire membership of Parliament. It is thus in form and structure, the closest approximation to Parliament itself — even for purposes of carrying out the legislative functions of Parliament stipulated generally under article 79, and specifically under article 271(4) of the Constitution. In these instances, any references of Bills made by Parliament to Standing and other Committees are analogous to a kind of limited delegation of Parliament's own inherent powers to make laws for Uganda under article 79 of the Constitution. In this connection, it is trite law that a person or body that delegates power to another, is not thereby deprived or disinvested of the power to exercise that power. The delegation of legislative power to those Committees is limited only to scrutinizing legislation — see article 90(3). But that does not mean that Parliament itself is thereby deprived or disinvested of the power and authority to scrutinize any such legislation. It is evident that Parliament itself may do the scrutinizing of the Bill. Therefore, by referring the pertinent Bill in the instant case to the Committee of the Whole House for scrutinization, Parliament was effectively and for all practical purposes doing the scrutinization itself - in as much as the membership of the Committee of the Whole House comprises all members of Parliament, and the Committee is chaired by the Parliamentary Speaker himself. To that extent, the Committee of the Whole House is the next best forum conceptually comparable to Parliament itself. Indeed, without belittling their symbolic and substantive significance, the only two visible differences between the Committee of the Whole House and Parliament itself appear to be that during the Committee's sittings (i) the Speaker leaves the Speaker's Chair; and (ii) the Sergeant at Arms places the mace below the table see Halsbury's Laws (supra) Vol. 34, para 770. Otherwise the Chairman of the Committee of the Whole House retains all the power of the Speaker - see Halsbury's Laws (supra)Vol. 34, para 771.
12. I am fortified in the above summation by two considerations. First, rule 107(1) of Parliament's Rules of Procedure mandates all Bills at the Committee Stage to be sent to the Committee of the Whole House for detailed clause-by-clause consideration, before forwarding the Bill to the House in plenary for the Third Reading and final enactment. Second, the purpose for which Parliament [in the United Kingdom] resolves itself into the Committee of the Whole House is explained in Halsbury's Laws (supra)Vol. 34, para 643 as follows:
"... to consider a public bill after it has been read a second time, or any bill which is recommitted after it has been reported from a Select Committee, or any bill which has been specially recommended." In a footnote to the above quotation, it is explained further that:
"Until 1967 a large part of the financial business of the House was dealt within Committees of the Whole House, most notably the business of supply and ways and means,... It is difficult to envisage any circumstances in which the House would use the procedure of the Committee of the Whole House other than for the detailed consideration of legislation, "lemphasis added] From the above quotations, it is self evident that virtually the sole purpose of the Committee of the Whole House is to scrutinize Bills after the Second Reading, including Bills already considered by other Committees. In any event, all Bills must be referred to the Committee of the Whole House, before Parliament itself in plenary takes over the final stage of the Third Reading and formal enactment.
III. The Doctrine of Prospective Overruling
13. As regards ground 14 of the Appellants' grounds of appeal, the issue raised concerned the doctrine of prospective overruling - namely, that even where the Court declares an enactment null and void, yet any rights, obligations, convictions or acquittals, and anything else done pursuant to the annulled Act need not be set aside. The doctrine is thus the exact opposite of declaring such enactment as null and void ab initio.
The learned Chief Justice in his admirable reasons has analyzed this doctrine ably, succinctly and cogently. I totally subscribe to the reasoning adduced by his Lordship and have no wish to repeat any element of his Lordship's lucid and scholarly analysis here. Nonetheless, given the fact that this is a totally new doctrine, its novelty demands perforce a comment or two.
14. First, the Constitutional Court correctly held that section 13 of the Interpretation Act (Cap 3) was not applicable to this case. It is true that that section generally provides for the grandfathering of the previous operation of a repealed Act and an expired Act. Thus, the grandfathering is a form of prospective overruling. Therefore, the temptation is great to attempt to equate the nullification of one Act to the repeal or expiration of another Act. Indeed, a number of their Lordships on the coram of this Court (as did the learned Attorney General earlier) have in their separate judgments in this case adverted to some consideration of section 13 of the Interpretation Act, as constituting a form of prospective overruling. However, that analogy ought not to be taken too far as regards an Act (such as the impugned Act, in this case) that is declared unconstitutional. A primary consideration here is that a repealed, expired or spent Act is, nonetheless, a wholesome Act which was at all material times valid and effectual. Such an Act does not suffer the badge and stigma of unconstitutionalism wrapped around its neck - as does an Act that the Courts of law have nullified for being defective and declared to be unconstitutional. Such latter Act is, in the absence of anything else to the contrary, null and void right from its inception. It simply didn't exist in the first place. At any rate, such was always the conventional doctrine. To that extent, an Act declared unconstitutional cannot be compared to a repealed, expired or spent statute, which always had a perfectly valid and effectual existence, in law and in fact, until its repeal or expiration. Accordingly, an Act that is judicially nullified and declared unconstitutional, does not stand on the same high moral or equitable pedestal as does an Act that is merely legislatively repealed by Parliament or which expires by sheer effluxion of time.
15. Secondly, Section 13 of the Interpretation Act, is a provision for the interpretation of statutory provisions. This is clearly and unequivocally stated by section 1 of the Interpretation Act itself - namely: "(1) Subject to this section, this Act shall apply -
(a) for the construction and interpretation of, and otherwise in relation to, all Acts of Parliament....;
(b) ... statutory instruments...; and
(c) in all other cases where its provisions are relevant and capable of being applied.
(2)
(3) This Act shall not apply for the construction or interpretation of the Constitutional instruments or an applied law. "[emphasis added]
It is trite law that the construction of ordinary statutory language is not of the same genre as the interpretation of constitutional provisions. The principles governing each set of interpretation are different. The construction of criminal or penal statutes, for instance, is generally restrictive for the protection of the accused person - see generally
Halsbury's Laws {supra) Vol. 44 (1), paras 1239, 1355, 1356, 1363.
Equally, fiscal legislation is generally accorded strict construction to protect the taxpayer - see Halsbury's Laws {supra) Vol. 44 (1) paras 1223, 1379; see also G.C. THORNTON'S Legislative Drafting (3rd Edition, 1987) pp. 222-231. The principles of construction for other general statutory provisions are again different, laying emphasis on either one feature or another. On the other hand, Constitutional interpretation is notably wide, expansive and liberal — particularly so as concerns provisions on the protection and promotion of fundamental human rights and freedoms - see generally Halsbury's Laws {supra) Vol. 44 (1) paras 1455 -1468.
Therefore, to equate the construction of ordinary statutes to the interpretation of a Constitution would be both inappropriate and unjustified. Indeed, it could even be illegal — given the thrust of section 1 (3) of the Interpretation Act, which categorically provides that:
"(3) This Act shall not apply for the construction or interpretation of the constitutional instruments or an applied law."
16. Thirdly, section 13 of the Interpretation Act applies only where "the contrary intention does not appear". In other words, the provisions of section 13 are not inherent. Parliament is free to provide for a contrary intention - which, if it does - then nullifies the applicability of section 13.
In light of all the above considerations, it would be inappropriate, if not downright invalid, to attempt to equate the rules governing the construction of mere ordinary statutes, to the principles and precepts governing Constitutional interpretation. Courts would do well not to risk the temptation to equate the two. On the contrary, the appropriate authorities in this Country would do well to adopt the principle of prospective application as a clear, express and substantive rule of our law - very much on the lines of the precedent already set by the Republic of South Africa (in sections 98 and 172 of the post-apartheid South African Constitution of 1996). See also Case & Anor. v Minister of Safety and Security (1996) SA 617.
17. The Constitutional Court held, and Mr. Lule (learned Counsel for the Respondents) contended, that the doctrine of prospective overruling applies only in criminal cases. They based themselves on the Malaysian cases of Public Prosecutor v Dato Yap Peng (1988) LRC (Const.) 69, and Datuk Haji Harun v Republic Prosecutor [1977] 2 MLJ 115. In the former case, the Supreme Court of Malaysia held section 418A of their Penal Code to be contrary to article 121 (1) of the Federal Constitution of Malaysia; but added that:
"When a statute was declared unconstitutional after a long standing current of decisions to the contrary, the Court would not give retrospective effect to the declaration so as to set aside proceedings which had taken place under the statute prior to the date of the judgment declaring it to be unconstitutional. The doctrine of prospective application could be applied by the Supreme Court to give such retrospective effect to its decision as it considered just. But in this case, no retrospective effect would be given to the decision".
18. Learned Counsel's above contention that the doctrine of prospective overruling applies only to criminal cases, is invalid - both in logic and in practice. It is true of course that cases such as the Malaysian cases referred to above, from which the above quotation is taken, arose out of a criminal background - in as much as the issues at hand were rooted in the Penal Code. In my view, however, that does not make the case a "criminal case", nor does it restrict the application of the doctrine to criminal cases only. Once a provision of a criminal enactment is subjected to the scrutiny of Constitutional interpretation, the perspective of the case changes, ipso facto, from a criminal setting to a Constitutional setting. This is true of all Constitutional cases. Some begin from a fiscal/taxation standpoint - but end as a Constitutional case (see for instance: Masalu Musene & Others v Attorney General, Constitutional Petition No. 5 of 2004). Others - such as the Petition by Tinyefunza (Constitutional Case No. 1 of 1996 & Appeal No. 1 of 1997), Rwanyarare (Constitutional Petition No. 5/1999 and No. 4/2000), and Ssemogerere (Supreme Court Constitutional Appeals No. 3/1999 and No. 1/2000) — begin as political issues rooted in Election Statutes, etc. But for all of them, once a question of Constitutional interpretation is involved, they become Constitutional cases. In short, the logic of the situation is that irrespective of the
underlying legal background and setting of a case, inquiry into its Constitutionality transforms it into a Constitutional case. Accordingly, the doctrine of prospective application cannot be said to be restricted to "criminal" cases only - when those criminal settings have been transformed into Constitutional ones.
19. Moreover, in practice, the doctrine of prospective overruling has been applied in non-criminal cases as well. Indeed, most of the USA cases that were cited by counsel, dealt with the interpretation of such political statutes as the Apportionment Statutes of various States -e.g. Banker v Carr 369 US 186 (1962), and Maryland Committee for Fair Representation v Tawes 84 Supreme Court 1429 (1964) - in which the US Supreme Court held as unconstitutional the apportionment statutes of Tennessee and Maryland, respectively, but still held the legislatures of those States to be de jure and able to act until the expiry of their mandate. More specifically, in Chicot County Drainage Dist. Vs Baxter State Bank 308 US 371 (1940), the Court concluded that in the application of the doctrine, no distinction was to be drawn between civil and criminal litigation.
The doctrine is a respectable doctrine in the force of its logic, and in its widespread application. It is recognized throughout the jurisdictions of the major common law system, namely: the USA, the United Kingdom, Australia, Canada, New Zealand, India and Malaysia; as well as in the Federal Republic of Germany, and in the European Union. Moreover, the doctrine is not only well-known, it is also specifically codified in South Africa - see section 172; and the proviso to section 98(5) of the Constitution of the Republic of South Africa. Under that proviso, the South African Constitutional Court is empowered to declare a law unconstitutional, provided that it may: "In the interest of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified."
20. In my view, consideration of the doctrine of prospective overruling is eminently apposite in the circumstances of the instant case - albeit as obiter only. A referendum was held in June 2000 on a matter of grave public import. Referenda are a rare Constitutional exercise in the history and public life of Uganda. In the forty odd years of our national life, there have been held only two referenda. Their significance cannot be over emphasized. The results of the referendum of 29th June 2000 were declared publicly in the Uganda Gazette of 28th July 2000. Registered voters were statutorily allowed up to 28th August 2000 to challenge those results by petition in the High Court. Not a single person ever challenged the referendum results. In the meantime, on the basis of those unchallenged results, an entire edifice of the post-referendum form of governance was established and governmental structures were constructed to support that form of governance. Specifically - and as ably stated by MULENGA, JSC in his separate judgment - pursuant to that referendum the movement political system was re-adopted; Presidential, Parliamentary, and Local Government elections were conducted; and thus, a new political and administrative leadership and allied institutions were constituted and installed in the land. All these have functioned for over four years now. Therefore, any attempt at this late hour, to dismantle this post-referendum superstructure, would be to undermine the Constitutional stability and order of the country, if not to invite unmitigated Constitutional chaos. When faced with the difficult choice of whether to dismantle or to retain the national edifice, a Court must tread cautiously. Mercifully for the Court, the heritage of our common law tradition is not without a solution in the resolution of so grave a predicament. We have a canon of interpretation (the common sense rule), which is to the effect that the common law requires the Court when considering competing interpretations, to presume that Parliament intended common sense to prevail - see Gardner vs Jay (1885) Ch D at pg. 58; and Wrothwell (FJH) vs Yorkshire Water Authority [1984] Crim. LR 43. Similarly, where there are competing constructions, each with a measure of inconvenience (or anomaly), the Court must balance the effect of each inconvenience (or anomaly) and determine the grater inconvenience (or anomaly) - see Pascoe vs Nicholson [1981] 2 All ER 769, Dillon vs R [1982] AC 484 at 487, and Cantebury City Council vs Colley [1993] AC 401 at 406, HL. As a corollary to the above doctrine, there is a principle of interpretation with a presumption against absurdity (such as unjustifiable inconvenience). In Shannon Realties vs Ville de St Michael [1924] AC 185 at 192, HL, LORD SHAW enjoined Courts to reject an alternative construction
"which would introduce uncertainty, friction or confusion into the working of the system."
21. A court faced with the predicament of nullification of a statute, could choose to dismantle the status quo (with the attendant risk of introducing friction, disorder and instability) - pursuant to the doctrine of retrospective application. Alternatively, the court could choose to retain the existing state of affairs (with great assurance of continued stability and order) - pursuant to the doctrine of prospective application. At this juncture, it is important to underline the point that with either choice, the court has to nullity the impugned Act, in any event. The question is not whether under one choice the Act is nullified, but under the other choice the Act is retained. Not at all. In both choices, the offending Act is declared null and void first. The question then is what is the Court to do with the previous operation of the nullified Act?
22. By retaining the status quo, no Constitutional catastrophe of any kind at all is likely to arise. On the other hand, the risk of disorder and chaos would not be farfetched at all if a Court decides to dismantle the national structures. In this connection, it behoves the Courts to always keep in mind vigilantly and jealously (as a critical aid and guideline to the proper interpretation of the Constitution) the very first tenet of our Constitution's Preamble. That tenet recites and recalls:
"...our history which has been characterised by political and Constitutional instability." [emphasis added]
In these circumstances, I, for one, would positively subscribe to the adoption of the prospective overruling doctrine. But I would do so on the following limited basis:
(a) That the application of this novel doctrine is all a question of investing a discretion in both the Constitutional Court and in
the Supreme Court of the land.
(b) That these Courts are to exercise that grave discretion judicially, and with the introspection and circumspection befitting the exercise of so awesome a responsibility. (c) That the discretion is to be exercised, not massively on every conceivable occasion, but selectively - taking into account the peculiar circumstances of each individual case at a time. (d) That the discretion to apply the doctrine of prospective overruling is not to supplant, displace or replace the principle of retrospective application. Rather, both doctrines are to exist side by side; with the Court choosing one or the other; or partially one and partially the other - as the Court deems appropriate in the given circumstances of each particular case. (e) In choosing one or the other doctrine, the Court will be guided by considerations of justice, equity and good conscience, as is required by the provisions of the Judicature Act.
23. In my view, this appeal offered an opportune occasion for this Court to advance its steps on the road to adoption of the doctrine of prospective overruling. In a very clear line of cases in this country, this Court has already implicitly taken the first tentative steps on this road. See, in particular, Attorney General v Salvatori Abuki, Constitutional Appeal No. 1 of 1998 (witchcraft); Kyamanywa v Uganda, SC Criminal Appeal No. 16 of 1999 (corporal punishment); and Charles Onyango Obbo & Andrew Mwenda v Attorney General, Constitutional Appeal No. 2 of 2002. In all these cases, the Court's declaration of statutory nullity was not accompanied by any retrospective reversal of the past operation of the nullified statutes. All past trials, convictions, and acquittals held or secured before the Court's declaration of the nullity, were left intact. In a sense, therefore, the beginnings of the doctrine of prospective overruling have already been etched onto the psyche of the jurisprudence of this land, albeit only implicitly. That fact needs to be made manifest. All those responsible for Constitutional matters in this country, would do well to consider an appropriately workable codification of this doctrine into our basic law — perhaps on the model of the South African and the Canadian analogies (of temporary validity).
24. It was for the reasons highlighted above - as well as for all the other reasons articulated separately by my learned colleagues on the coram - that I agreed to join in this Court's unanimous decision of 2nd September, 2004.
REASONS OF ODER, J.S.C FOR THE COURT'S DECISION.
The is an appeal against the decision of the Constitutional Court of Uganda dated 25th June, 2004 by which the petition filed by the respondents challenging the validity of the Referendum (Political systems) Act, 2000, (Act 9/2000) was granted and the Act was declared void.
We heard the appeal from 9th to 11th against, 2004, and reserved our judgment. In view of the urgency and importance of the issues involved in the appeal, we found it necessary to give our decision at an earlier date than had been anticipated. At the same time, we gave summary of our reasons for that decision, reserving the details of the reasons.
During the hearing of the appeal the appellant was represented by Hon. Amama Mbabazi, the Attorney General, assisted by Mr. Joseph Matsiko, Principal State Attorney. The respondents were represented by Mr. G.S. Lule, SC, assisted by Mr. Joseph Balukuddembe.
There were 14 grounds of appeal. By a unanymous decision of the Court, the appeal partially succeeded. Grounds 2, 3, 5, 6 and 9 failed, but grounds 4,7,8,10, and 11 succeeded. We made no decision on ground 12 because it was not specifically argued. Nor did we find it necessary to make a decision on ground 14 in view of our decision on other grounds. Grounds 1 and 13 were abandoned at the hearing of the appeal.
We made the following declarations and orders.
"1. In view of our holding on grounds 9, 10 and 11; the first declaration made by the constitutional court, to the effect that the Referendum (Political Systems) Act 2000 Contravened Articles 89 and 90, cannot stand. We set it aside.
2. In view of our holding on grounds 5 and 6, the third declaration made by the Constitutional Court is upheld but we modify it to read thus:
"The enactment of the Referendum (Political System) Act, 2000 on 7th June, 2000 was inconsistent with the provisions of Article 271 (2) and rendered that Act null and void".
3. In view of our holding in respect of grounds 4, 7, and 8 we set aside the second declaration made by the constitutional court to the effect that the holding of the referendum contravened article 69, and substitute it with an order declining to make a declaration in that regard.
4. We ordered that each party bears its costs of this appeal but the respondents get half of the costs in the Constitutional Court"
I have had the advantage of reading in draft the reasons prepared by the learned Hon. Chief Justice, B.J. Odoki in which he gives all the background information to the court's decision of the appeal. I shall not repeat the same here. I shall consider the grounds in five batches as argued by the counsel for the appellant, subject to the alteration made by the court.
Grounds 2 and 3 of the appeal state as follows:
"2 The learned Judges of the Constitutional Court erred in law and in fact in holding that the expunged Referendum (Political Systems) Act, 2000 can be challenged as being un constitutional;
3. The learned Judges of the Constitutional Court erred in law and in fact in hearing and deciding on a petition challenging a non-existing dispute on the basis of a nor-existing law".
These grounds were argued for the appellant by Mr. Matsiko; the Principal State Attorney. He submitted that the petition giving rise to this appeal came for hearing on 28.4.04, and posed the question "At that time, was there a dispute which required resolution by the Constitutional Court?" His answer to the question was that when the petition came for hearing the impunged Act was no longer an Act of Parliament and could no longer be challenged in the Constitutional Court. He contended that for the Constitutional Court to resolve a dispute, it must be within article 137(3). But when the constitutional Court rendered its decision Act 9/2000 was no longer an Act of Parliament within Article 137 (3) (a). The Act had expired. The petition was filed On 22.6.2000. The hearing of the of the Petition commenced after the Act had expired, the sole purpose of which was to hold the referendum. The petitioners did not amend their petition. Under General Notice No. 177 of 2000, the date for the referendum was 29.6.2000. Section 13 (3) of the Interpretation Act (Cap 3) provides that upon the expiry of any Act, if is deemed to have been repealed. A dormant Law cannot be challenged as unconstitutional after it has expired.
Mr Lule commenced his submission by informing the Court that he was adopting the submissions he had made in the Constitutional Court. He said that what he was going to say in this court was only complementary to and clarification of his submissions in the lower court or to provide answers to new points.
He submitted that the answer to the question when a challenge of an Act of Parliament can be made is provided by the provisions of Article 137(1) (2) and (3). In the instant case the respondents challenged the validity of
Act 9/2000 when they filed their petition in the Constitutional Court. The Act was challenged because referendum under article 137(3) (a) and the referendum to be held was challenged as anything under the authority of the Act. The referendum was also challenged in anticipation under article 50 of the constitution as it was threatened to be held. The petition was brought to stop that from happening. The purpose was for the court to decide on the validity of Act 9/2000 before the referendum was held on 26/6/2000. Although that was not possible, the petition was still good, but with a change of emphasis as to what was to be achieved. At the time it was a preventive measure. At the time of hearing it was performing an autopsy. Challenging of the referendum was in pleading and by implication. Learned counsel contended that if Act 9/2000 was invalid, the conclusion which follows is that anything done under it is invalid.
In his answer to the question what was the status of the impunged Act by 22/6/2000 when the petitioners filed their petition to challenge it, and whether it was dominant or active, Okello, JA, who wrote the lead judgment of the Constitutional Court with which other members of the court agreed, said
"The undisputed evidence available indicates that the impunged Act was passed on 7/6/2000 to provide for the holding of referendum in compliance with article 271 to choose a political system. It was assented to on 9/6/200 and was published in the Gazette on 12/6/2000. Section 2 defines an Act of Parliament to mean a law made in Parliament. The impunged Act therefore became law on 12/6/2000 though its section 2 back-dated its effective date to 2/7/1999. The referendum for which it was made was scheduled to be held on 29/6/2000. The impunged Act has achieved its effect and therefore became spent when the referendum was held and its results were published by the Electoral Commission (EC) on 28/7/2000 under the General Notice No - 280 According to the results, the Movement Political System was adopted. This means that when this petition was filed the impugned Act was in force and not dominant. It was challengeable. Failure of the court to hear and dispose of the petition before holding of the Referendum could not be visited on the petitioners. Even if the impugned Act had expired, that expiry could not render the petition incompetent. If it had expired, the rights created by the impugned Act would not have been affected by the expiring of the Act. Section 13 (3)(2) of the Interpretation Act (Chap 3) saves the rights, privileges, obligations and liabilities created by the repealed or spent Act. It provides thus:-
"Where any Act repeals any other enactment, then unless the contrary intention appears, the repeal shall not:-(c) affect any right, privilege, obligation or liability acquired occurred or incurred under any enactment so repealed''
This meant that the right contained by the impugned Act to hold the referendum on 29/6/2000 was not affected by the expiry of the Act. The complaint in the petition was about the situation as at the time when the petition was filed. The judgment would also relate to that.
I would also add that a system which as been set in place by or under an Act of Parliament or any law can be challenged at any time notwithstanding the repeal or expiry of the Act. This is possible under article 137(3) last portion which states: -
" or anything in or done under the authority of any law."
In my view, this provision is wide enough to cover that situation."
I agree with this holding of the Constitutional Court and the reasons given in the judgment of Okello, J.A.
In the circumstances, grounds 2 and 3 of the appeal failed.
GROUNDS 5 AND 6
"5 The learned judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 was passed in contravention of article 271(2) of the Constitution. 6. The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 amended Article 271(2) of the Constitution".
Hon. Mr Amama Mbabazi, the learned Attorney argued grounds of appeal together. He contended that article 271(2) and (3) must be read together, the combined effect of which is that any person had the right to canvass for a political system of his or her own choice for at least one year. The burden was on the respondents to prove that Parliament had not enacted appropriate laws and that people did not canvass for political systems of their choice. The learned Attorney General relied on what this court said in (Rtd) Dr. Besigye Kizza Vs Museveni Kaguta, Election Petition No. 1 of 2001 (SCU) (unreported) in which this court said:
" the burden of proof in election petitions as in civil cases is settled. It lies on the petitioner to prove his case to the satisfaction of the court."
The learned Attorney General contended that the respondent did not adduce evidence that they could not exercise their rights. The burden was on them to prove that no law had been passed at the time Act 9/2000 was enacted. He criticized the learned Judges of the Constitutional Court for holding that people did in fact canvass for political systems of their choice. Referring to the affidavit of Hon. Zachary Olum that supporters of the Democratic Party were prevented from canvassing, the Hon. Attorney General contended that it was not clear whether Hon. Olum was talking about himself or about his party. It was therefore not safe to rely on that evidence to conclude that therefore was no canvassing.
The learned Attorney General submitted that the 6th Parliament enacted The Referendum and Other Provisions Act 1999 (No2/99). That Act provided, inter alia, for a referendum on choice of political systems under article 74 of the constitution. The date of commencement of that Act was 2.7.99. This was one year before the referendum was to be held on 29.6.2000. According to the Hon. Attorney General, The 6th Parliament commenced on 2.7.96. So two years before its term ended on 2.7.2001, people were free to commence canvassing for political systems. Subsections (1), (2) (3) (4) (5) and (6) of section 13 of Act 2/99 provided for right and the procedure of people to canvass for support for political systems of their choice. Learned Attorney General pointed out that this Act was still good law when Act 9/2000 was passed and the referendum held on 29.6.2000. Section 27 of Act 2/99 which talked about canvassing should be read together with section 2 of Act 9/2000, which provided that Act 2/2000 should be deemed to have come into force on 2.7.99. Learned Attorney General contended that Act 2/99 permitted canvassing and canvassing took place. Act 2/99 was declared null and void on 20.8.2000, long after Act 9/2000 had been passed and the referendum held; learned Attorney General submitted that even if the Constitutional Court had been right that for a person to exercise his or her right to canvass, there had to be a law for that purpose, Sections 2 and 29 of Act 9/2000 gave people the right to canvass for any political system. Sections 2 and 29 of Act 9/2000 validated everything done under Act 2/99.
In support of his contention that people were permitted to canvass under Section 13 of Act 2/99 the learned Attorney General relied on the various holdings of the learned Judges of the Constitutional Court in Constitutional Petition No. 5/99. Dr. James Rwanyarere and Hajji Wegulu Vs Attorney General (Constitutional Court of Uganda) (unreported). For instance Berko, JA said on page 21:
"The referendum exercise to determine the political system the people of Uganda wish to adopt is within the provisions of the Constitution. Therefore Political Parties or organizations that advocate for a multi political system can organize and form national referendum committees to canvass during the referendum. It is common knowledge that the multi party political system adherents have done so and are in fact funded by the Electoral Commission."
The other members of the Court Manyindo D.C.J., Engwau, JA, made similar statements. It is noteworthy that this judgment was read on 6.6.2000 before Act 9/2000 was assented to on 9.6.2000. Learned Attorney General contended that this judgment shows that there was canvassing under Act 2/99. The learned Attorney General also referred to Constitutional Petition No. 4of 2000 Dr.James Rwanyarare Haji Wegulo (Constitutional Court) (unreported). The Petition was brought under articles 1371(1), (3),(4) against the Attorney General and the Electoral Commission, seeking a declaration that:-
(a) Act 9/2000 was inconsistent with and contravened articles 79(1) (3), 90(1), (2),(3), 92 and271(2)and (4) of the Constitution, and that accordingly Act 9/2000 was null and void. (b) a declaration that sections 2 and 29 of Act 9 of 2000 were inconsistent with and contravened articles 9 (1) (3), 90(1)(2) (3)and 271(2)(3) and (4) of the constitution.
(c) A declaration that the act of conducting a referendum pursuant to Act 9 of 2000 was inconsistent with and contravened articles 271 (i) (2) (3) and (4) of the constitution.
(d) That the respondents pay to the petitioners costs of his petition. In her judgment Kitumba JA agreed with the submission of Counsel for the Attorney General that section 29 Of Act 9/2000 validated previous acts which had been done under any known law. Act 2 of 99 provided for the holding of the referendum and other matters connected therewith until Act 9 of 2000 was passed. According to article 271(2) a person was free to canvass for public support for a political system of one's choice two years before the expiry of the first term of Parliament. The Referendum and other Provisions Act (2/99 was in place. The citizen whose wished participated in the referendum process. Kato, JA in his judgment did not agree with the petitioner's Counsel that there was not enough time for intended candidates to canvass. The learned judge said that the issue of whether time was enough or not was subjective. Engwau, JA said that Parliament acted properly when it enacted Act 9/2000. The question of Act 9/2000 being inconsistent or in contravertion of Article 71(1) and (3) did not arise. Hon. Attorney General made the following summary of his arguments: Firstly, people had one year to canvass for the choice of political system they wanted.
Secondly, people did, in fact canvass
Thirdly, sections 2 and 29 of Act 9/2000 had the effect of saving the canvass carried out under Act 2/99.
Fourthly, consequently sections 2 and 29 of Act did not in fact or in Law abridge the time for canvassing, and article 271(2) was neither breached nor amended.
In his submissions on grounds 5 and 6 Mr. Lule the respondents' learned counsel, contended that there was no valid law to give effect to the Provisions of article 271. Act 2/99 was nullified. The purpose of Act 9/2000 was in anticipation of Act 2/99 being nullified, because nullification goes to the very root and at the beginning of the nullified statute. Whatever was done under that law was invalid. Parliament was right to enact another law, which was, in fact, made. On 31.5.2000 this court referred Petition No. 3 of 1999 back to the Constitutional Court. It was therefore anticipated that Act 2/99 would be nullified. Act 9/2000 and Act 2/99 were not parallel legislations. The former specifically referred to article 271 of the Constitution. So, whatever was done under Act 2/99 was not applicable to Act 9/2000. It did not save Regulations made under Act 2/99. Section 27 of Act 9/2000 makes this very clear. It provides that notwithstanding the provisions of any other law the referendum required to be held under article 271 of the Constitution shall be held in accordance with this Act. That excludes things done under Act 2/99 and section 29 does not save the Regulations made under Act 2/99 because that Act was nullified, whether the Regulations were made in good faith or not. Similarly anything else done under Act 2/99 was nullified whether it was done in good faith or not. As Regulations made under Act 2/99 were nullified new regulations should have been made for purposes of Act 9/2000. You cannot adopt a nullity. If they had no life, you cannot revive them. Learned Counsel referred to "Words and phrases Legally Defined" by J.B Sanders, 2nd Edu. 1969. Butterworths and to Beddington Vs Wilson (1951) I AUER 166. Something "null and void" should be treated as nonexistent ab initio.
On the issue of canvassing by the people of Uganda for political systems of their choice Mr. Lule submitted that many people were excluded from doing so and were deprived of the right to do so by the measures put in place by the authorities. Hon. Zachary Olum says this in his affidavit which was intended to show that the environment was not conducive to canvassing. If some individuals canvassed as the Hon. Attorney contended in his submission, individuals as members of political parties were not free to canvass as envisaged in article 271(2) of the Constitution. There was no law in place as envisaged in article 271(4). Under this article the laws were to free people canvassing, including holding rallies. Hon. Zachary Olums affidavit spoke of individual not party of D.P. There was no rebuttal to this affidavit. Even after Act 2/99, article 269 remained in force, banning political organizations from holding public rallies. Section 12(1) of Act 9/2000 allowed any person or group of persons to canvass for support of any side in the referendum. Mr. Lule submitted that the law allowed canvassing but in practice there were restrictions.
Mr Lule commented on the Referendum Regulations, 2000 (Statutory Instrument 2000 No. 14) which provides in Regulation 3 that in accordance with subsection (1) of section 13 of Act 2/99, any person or group of person is freed to canvass for support of any side in a referendum and may form a referendum committee or similar structure for the purpose. Act 2/99 under which the Regulations were made (Statutory Instruments 14 of 2000) was declared null and void. Consequently anything done under it contained no rights. Mr Lule urged us to hold that the regulations in question conferred no rights on anybody to canvass under it. Canvassing under it was annulled. Even assuming that these Regulations could be and were saved, they could not operate retrospectively, earlier than Act9/2000, which adopted them. They would come into effect the same day as the Act. So the period of canvassing under the Regulations has to be reckoned from the date of the Act. It is common ground that the period left was 20 days instead of 2 years under article 271(2). Article 271(3) in effect appears to mean one year for canvassing,, the period of 20 days does not amount to one year. Act 9/2000 abridged the time and that abridgement amounted to an amendment of the Constitution.
Regarding what the Constitution Court said in Petition No. 5 of 2000, Mr.Lule submitted that there was no evidence to support the statement that people were free to and did campaign for Political Systems of their choice. That petition was not cited or relied on by the appellant in the instant case. It is not known whether it was a notorious fact that people canvassed. The law could allow canvassing but evidence is necessary to show that there was canvassing. In the learned Counsel's view, as the time for canvassing under article 271 was abridged, it meant amending the Constitution without complying with Articles 259, 250 262 of Chapter 18 of the Constitution.
Under the Transitional Provisions in Chapter 19, the Constitution commands Parliament under Article 271, to enact laws to give effect to the provisions in that Article. The laws to be enacted were to ensure that:
• Two years before the expiry of the term of the first Parliament elected under the Constitution any person is free to canvass for public support for a political system of his or her choice for purposes of a referendum, as provided in clause (2) of that Article;
• During the last month of he fourth year of the (first) term of Parliament, a referendum shall be held to determine the political system the people of Uganda wish to adopt.
In his lead judgment, Okello, JA said:
"The undisputed evidence available however shows that the impunged Act became Law on 12.6.2000 when it was published in the Uganda Gazette. The referendum intended under article 271(3) was scheduled to be held on 29.6.2000. That gave a period of less than one month for canvassing. However under section 12(10) of the impunged Act, canvassing was to stop a day before the voting day. That left only 16 days as against one year under the Constitution for the people of
Uganda to canvass for public support to choose political system. As if that shortness of the time was not bad enough, section 12(8) of the impunged Act imposed further restrictive conditionalities. It required a seventy two (72) hours written notification to the Sub County Chief of the area and the police officer in charge of the area each time he wanted to address a public rally in an area around the County, and further information regarding the intended activity as the police officer in charge of the area may require from him/her. Paragraph 5 of Hon. Z. Olum's supplementary affidavit which remained uncontroverted, shows that this conditionality was a serious impediment to the envisaged freedom to canvass for public support for the choice of political system. He and his Democratic Party member colleagues were prevented by the police from holding peaceful rallies in several places across the country, for instance in Tororo, Mbarara, Mukono and Gulu. In my view, firstly the short time, 16 days allowed under the impunged Act as against one year intended under the Constitution for the people of Uganda to canvass for public support to choose a political system was inconsistent with article 271 (2). Secondly the conditionalities set out in the impunged Act, particularly section 12 (8) thereof are repugnant to the freedom envisaged in Article 271 (2). It is interesting to note that section 13 of the Referendum and other Provisions Act, No. 2 of 1999 which was later declared by the Supreme Court to be unconstitutional".
In my considered opinion the finding of the learned Justice of Appeal, to which the findings of the other members of the Court were similar, that Act 9/2000 was inconsistent with clauses (2), (3) and (4) of Article 271 of the constitution cannot be faulted. The period within which the people of Uganda could canvass for support of political system of their choice was abridged from two years to less than one month, the freedom for people to canvass was so restricted by the various laws in place that canvassing under article 271 (2) was more in the theory than in practice; laws which were required to be put in place under article 272(4) to give effect to the provisions of article 271 were not in place. Attempts by parliament to save the effect of section by means of sections 2 and 29 of Act 9/2000 section 33 of Act 2/99 and Regulations made under that Act relating to canvassing was, with respect, a futile attempt to do so whether they were made or done in good faith did not, in my view, save the situation. It is their validity under the Constitution which was important. They were nullified when Act 2/99 was nullified ab inito. In the circumstances, grounds five and six of the appeal failed.
Grounds9, 10, and 11
They were framed as follows:
"9. the learned Judges of the Constitutional Court erred in law and in fact in holding that a committee of the whole House is not a standing Committee of Parliament.
10. the learned Judges of the Constitutional Court erred in law and in fact in holding that the passing of the Referendum (Political System) Act, 2000 contravened Article 90 of the Constitution. 11. The learned Judges of the Constitutional Court erred in law and in fact in holding that the voting method adopted by Parliament in passing the Referendum (Political System) Act 2000 contravened Article 89 of the Constitution".
In his submission on sounds nine and ten, the Hon. Attorney General recalled that in a split decision the majority of the Constitutional Court held that the whole House was not a standing committee of Parliament, but the minority, Engwau and Kitumba JJA, said that it was. The Attorney General said that the appellant support the minority view. He submitted that under article 90 (1) it is possible to have a committee of the whole House. It provides that Parliament shall appoint standing committees and other committees for the efficient discharge of its functions. Under article 90 (2) (a) the members of standing committees shall be elected from among the members of Parliament during the first session of Parliament. The functions of standing Committees shall include discussing and making recommendations on bills laid before Parliament and report to Parliament on their functions. The learned Attorney General submitted that the evidence of Hon. Sekandi, the Speaker of Parliament that a committee of the whole house is a standing Committee was not contraverter; and that the view that Article 90 (1) was breached because a standing Committee should have few members is to insist on a technicality. The power to legislate under article 79 lies with Parliament and the impugned Act was enacted validly in accordance with that power.
Mr Lule argued grounds 9, 10, and 11 together. Starting with grounds 9 Mr. Lule contended that as article 90(1) requires Parliament to appoint standing Committees and other Committees for the efficient discharge of its functions, lack of such standing Committees is inefficient. Article 90(2) (a) provides for election of members of standing Committees from among members of Parliament during the first session of Parliament.
Mr Lule contended that the framers of the Constitution did not think that all the MP's should be in a standing Committee. There is no evidence that a Committee of the whole House was elected from the whole House. Learned counsel submitted that unless it could be shown that a committee of the whole House is Committee elected from members of the whole House, it cannot be a standing Committee, but another Committee. There must be a standing committee to discuss bills. If there is not, then it would be unconstitutional. In the Hansard Copy attached to the answer to the petition Nsambu, MP is shown have said that no standing committee had been appointed. The answer the speaker, Hon Wapakabulu, gave to the Member of Parliament did not say that a standing Committee had ever been elected. Learned Counsel contended that all this leads to the conclusion that a standing committee was not the Committee of the Whole House. The bill for Act 9/2000 was not and could not be referred to a standing Committee when there was none. Learned Counsel concluded that the procedure laid down in the Constitution for passing bills to become Acts was not complied with. The procedure was not a technicality, which should be ignored. The meaning of article 90(3) (a) is that all bills must be referred to a standing Committee. It is mandatory.
Under ground 11 regarding the method of voting when Parliament debated and passed the bill for Act 9/2000, Mr. Lule submitted that the relevant Hansard Shows that "ayes" or "noes" answers were echoed in response to questions put by the Speaker. Since the bill amounted to amending the Constitution the procedure required for passing bills for amendment of the Constitution should have been followed. There should have been a head count as this Court decided in Constitutional Appeal No. 1 of 2000. Article 89(1) requires bills to be passed by a majority of votes of the members present and voting. As the bill for act 9/2000 was amending the Constitution, a three quarters majority was necessary to pass it.
According to the decision of this Court, there is no merit in ground 9. The Constitutional Court was right in holding that the committee of the whole House is not a standing Committee of Parliament the characteristics of which are clearly specified in article 90(2) (a). The problem was that there was no standing Committee appointed by Parliament as required by Article 90(1). Due to that lacuna, Parliament was ingenuous enough to treat the Committee of the whole House as a standing Committee. As stated in our decision of the Court, a standing Committee should have been elected during the first session of Parliament under Article 90(2) (a). Ground 9 therefore failed.
However there is no merit in ground 10 and 11. First it was our considered opinion that the Constitutional Court erred in holding that the passing of Act 9/2000 contravened Article 90 by reason of the omission to refer the Bill for that Act for scrutiny and recommendation by any standing Committee. Parliament has power under Article 79 to make laws on any matter for the peace, order, development had good government of Uganda. In our view the Provisions of article 90(3) that makes it a function of Standing Committees to discuss and make recommendations on all Bills laid before Parliaments, only empowers standing Committees to do so in the course of assisting Parliament to discharge its functions efficiently. The provisions can not be construed as a restriction, nor, as providing a condition precedent for Parliament in the exercise of its legislative powers. Secondly with regard to the method of voting in Parliament, we found that the constitutional Court erred in holding that Parliament contravened Article 89 in passing the Act 9/2000. It appears that the Constitutional Court misconstrued the decision of this Court in Constitutional Appeal No 1 Of 2000. Paul K. Ssemogerere & two others Vs Attorney General. We reiterated what the learned Chief Justice said therein_
" the procedure provided in Article 257A does not apply to
the amendment of the Constitution where a two thirds majority of all members of Parliament with voting rights is required to pass such an amendment, the procedure of voting by "Ayes" and "Noes" is in capable of providing accuracy and certainty that the necessary numbers of Members of Parliament required to pass such important legislation have been obtained. The procedure may be applicable in deciding questions where only simple majority of Members of parliament present and voting is required in non-contentious matters, as provided under Article 89( 1) of the Constitution" provided).
Accordingly grounds 10 and 11 succeeded.
Grounds 4,7, and 8
They are framed as follows:
"4 The learned Judges of the Constitutional Court erred in law and in fact in holding that the referendum which was held on 29 June, 2000 was invalid;
7. The learned Judges of the Constitutional Court erred in law and in fact in holding that the 2000 Referendum on choice of political system was held in contravention of Article 69 of the Constitution.
8. The learned Judges of the Constitution Court erred in law and in fact in holding that the people of Uganda in a referendum held on 29th June 2000 never adopted a political system under article 69 of the Constitution".
Under these grounds, the learned Attorney General submitted that petition No. 3/2000 from which this appeal arose did not challenge the referendum held on 29.6.2000. The Court was not asked to decide whether the referendum contravened article 69 or any other Article of the Constitution or whether or not the people of Uganda chose a political system, because, the petition was filed on 22.6.2000, and the referendum was held seven days later on 29.6.2000. So the petition could not have asked that a referendum held later was invalid. For the Constitutional Court to invalidate the referendum in a petition filed before the referendum was to err in law and in fact. Secondly, the learned Attorney General submitted, that nowhere in the petition did the petitioners seek from the Constitutional Court a nullification of the referendum held on 29.6.2000. The petition was filed on 22.6.2000, seven days before the referendum was held, so it could not have asked for a nullification of the referendum and it was never amended to do so. Paragraph 3(a) (i) to (v) contained prayers for nullification of Act 9/2000 but did not pray for nullification of the referendum. The learned Attorney General contended that the Constitutional Court erred to declare the referendum of 29.6.2000 null and void. Rule 13 of Legal Notice No. 4 of 1996 The Fundamental and Freedoms Right (Enforcement Procedure) Rules 1996, provides that procedures in
Constitutional petitions are governed by the Rules of Civil Procedure. Under order 6 rule 1(a) of the CPR every pleading shall contain brief material facts on which a party depends. In the instant case, the petition challenged the validity of Act 9/2000 but did not challenge the referendum. The learned Attorney General cited certain authorities in support of his submissions, namely: A. I. R. Commentaries, 6th (1957) Edition, Page 2697, where it is stated that the decision of a case by a court cannot be based on grounds outside the pleadings of the parties, and it is the case so pleaded that has to be judged. A judgment is bad if it is based on a question neither raised in the written statement of defence, nor included in any issue though it is open to a court to find that the case of a party lies somewhere between the cases of both parties; Our Rules of Civil Procedure (Cap 65) Order 18 rule 4; and Captain Harry Grandy Vs Gaspair Air Charters Ltd (1956) 23 EACA 139. in which it was held that a trial judge erred reading in a decision based on a ground which was not pleaded. The learned Attorney General contended that in the instant case there was no amendment of the petition. The fact that pleadings did not raise this issue was ignored by all the Justices of Appeal and their holdings that the referendum held on 29.6.2000 was invalid, and that the people of Uganda did not make a choice of a political system was on an issue which was not pleaded. The learned Attorney General therefore prayed that grounds 4, 7 and 8 be allowed.
Mr. Lule's submission on grounds 4, 7 and 8 was brief. It is to the effect that reference to the petition was made in paragraph 2(e) of the petition.
In my opinion what we said in our decision on these grounds contains adequate reasons for that decision, which I herein adopt. The court said that on the face of it, the question whether the referendum held on 29th June, 2000 was valid or not was not expressly raised in the petition, which was filed before the referendum was held, nor were the pleadings amended at any time subsequently to expressly include it Consequently, the question did not expressly feature among the framed issues. However in our view, it was implicit in the pleading in paragraph 1(e) of the petition, where in it was alleged that omission to enact a low allowing political party activity would inhibit holding of a free and fair referendum and thereby contravene Article 69. This led to framing of the 4th issue, which reads:-
"(d) whether or not the absence of a law regulating the activities of political organizations as provided under Article 269 of the constitution contravened Article 69 by perpetuating a political environment under which the people of Uganda could not make a free and fair choice of the political system as to how they should be governed". Clearly, in answering this issue it was inevitable to consider if the referendum held on 29th June 2000 contravened Article 69. Accordingly we held that although it was not expressly framed as an issue, the question was properly before the Constitutional Courts and the Court was not in error to consider and make a decision on it. We have considered if, in the absence of valid law passed pursuant to Article 271(4), the referendum can be construed as validly held on authority of Articles 69 and 271(3). Article 69 generally entrenches the right of the people of Uganda, to adopt a political system of their own choice, while article 273(3) fixed the period in mandatory terms, when the people would for the first time exercise their right to a referendum. In our view, it could be so construed if the referendum was free in compliance with article 69. The Constitutional Court found that because of the legal regime prevailing at the material time, political parties were not free to canvass for the multi-party political system to which they subscribed, and concluded that the referendum held on 29th June 2000 could not have been free and fair as required by Article 69. While we would not fault that finding as a postulate, we held that it was not a proper basis for granting the relief of declaration sought. Not withstanding the uncontradicted affidavit evidence of Hon. Zachary Olum to the effect that he and other members of the Democratic Party were, on a number of occasions and in diverse places, prevented by the police from holding public meetings, the actual conduct of the referendum and the results thereof were not challenged, nor inquired into to determine if it was, or was not free and fair. As a consequence of the referendum, the movement political system was retained in place and the affairs of State have been conducted on that basic for over four years. To declare the referendum a nullity would have far reaching consequence. In our view, these were compelling circumstances in respect of which the Constitutional Court ought to have exercised its discretion to decline granting the second declaration. This however, in my view, does not necessarily mean that where a Constitutional requirement is mandatory, the Constitutional Court should decide on the relevant issue according to its discretion. To the extent that grounds 4, 7 and 8 relate to the second declarations, they succeeded.
Ground 14 Ground 14 states:
"14 The learned Judges of the Constitutional Court erred in law and in fact in holding that the doctrine of prospective over- ruling could apply to the petition".
This last ground was argued for the appellant as an alternative to ground four. The Court did not make a decision on it in view of its decisions on the proceeding grounds. I shall, nevertheless, consider it briefly and make my own decision on it.
In his submission the learned Attorney General said that he would rely on decisions and statutes from other jurisdictions as none exist in ours. He defined the doctrine as meaning that when a statute is held unconstitutional Courts should not give retrospective effect to the unconstitutionality so as to set aside nights or obligations, convictions or acquittals or anything done prior to the nullification of the statute. Learned Attorney General added that the doctrine was developed in the U.S.A, and was adopted in India and Malaysia. He referred to the U.S.A. case of Linkletter Vs Walker, Warden, 381 US (1965) 618 Simpson Vs A.G. of New Zealand (1955) NZ. Law Reports, P.279, and contended that the most common reason for prospective overruling voting is to protect reliance of people on a law before it is nullified. If the court realizes that during the period when the law was good law that people organized their lives on it the Court should perceive the consequences if the law is nullified: Public Prosecutor Vs Dato Yap Peng (1988) LRC (Const). 69.
In the instant case, the learned Attorney General submitted that the Constitutional Court nullified Act 9/2000 and said that the referendum held under it was also null and void. He added that even if the invalidation of the Act were to stand acts done under the impugned Act before it was nullified should remain valid until the Act was declared invalid. The doctrine does not apply only to criminal cases but the authorities he has referred to show that it applies to civil as well. Learned Attorney General contended that Section 13(2) of the Interpretation Act (Cap3). recognises the principle of prospective over-ruling. It is the only authority in Uganda on the issue. In the instant case, the Constitutional Court held that though the expunged Act had expired, section 13 saved certain rights. The effect of the repeal of the Act does not affect certain operations, but the Constitutional Court held that the doctrine of prospective over ruling did not apply to the referendum held under the impugned Act. Learned Attorney General contended that this was inconsistency and he prayed to us to uphold ground fourteen of the appeal.
The submission by Mr. Lule S.C. on the doctrine of prospective overruling was brief. He referred to sections 13(2)(a), (b), (c), (e) and (3) of the Interpretation Act.
"Section 13. Effect of a repeal -
(2) where any Act repeals any other enactment, then unless the contrary intention appears, the repeal shall not.
(e) affect any investigation legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment, and any such investigation, legal proceedings or remedy, may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing act had not been passed."
(2) Upon expiry of any Act this section shall apply as if the Act has been repealed."
Mr. Lule submitted that the expiry of Act 9/2000 did not affect the respondents' petition, which had already been filed. The Constitutional Court had jurisdiction to continue to hear and decide on it in spite of the expiry of the Act. Learned Counsel contended that if the doctrine of prospective over-ruling depends on people having ordered their lives according to the expired statute courts, for instance, would not nullify elections. Further the authorities which the learned Attorney General relied for contending that the doctrine of prospective over ruling applies to the instant case are about legislations which have been in place for a long time. They do not apply to the instant case because the legislation in issue (Act 9/2000) was passed for a single purpose, and the statute for the single exercise of the referendum is not a law, which has been followed for a long time.
The Constitutional Court considered whether the doctrine of prospective over-ruling would save the referendum held under the impugned Act. Okello, JA ruled that the doctrine did not apply to this case for two reasons. Firstly on the basis of the decision in Public Prosecutor Vs Dato Yap Peng (supra) the doctrine applies only to criminal cases; and secondly only the highest court in the land can apply it.
Twinomujuni, JA also said that the doctrine was inapplicable to the instant case for the same reasons given by Okello, JA: He elaborated his reasons why in his opinion the doctrine did not apply to the instant case. The gist of that view is that: Mr. Tibaruha, Acting Solicitor General, who represented the Attorney General in the Constitutional Court submitted that the respondents were not entitled to any remedy even if the constitutional court was to hold that Act 9/2000 was null and void. He submitted that on the authority of the Malaysian Supreme Court decision in Public Prosecutor Vs Dato Yap Peng (supra) the doctrine will not permit the Constitutional Court to invalidate the actions which were carried out before the Act was declared null and void. Mr. Lule responded that the doctrine only applied in criminal cases and had no application in civil and constitutional matters.
In the Malaysian case (supra), Salleh Abas L.P. saidat page 93: "The general principle of retroactivity of the judicial declaration of invalidity of a law was modified by the Supreme Court of the United states of America in Link letter Vs Walker, 381 US 618, 1965 at P. 628 when it devised the doctrine of prospective overruling in the constitutional sphere as a practical solution for alleviating the inconveniences which would result from its decision declaring a law to be unconstitutional after overruling its previous decisions upholding its constitutionally. This doctrine was applied by the Supreme Court of India in L.C Gelak Nath V State of Punjab and Another AIR 1967 SC 1643 (at PP1669). The doctrine is to the effect that when a statue is held to be unconstitutional after overruling a long standing current of decisions to the contrary, the court will not give retrospective effect to the declaration of unconstitutionality so as to set aside proceedings of convictions or acquittals which had taken place under that statue prior to the date of judgment which declared it to be unconstitutional and convictions or acquittals secured as result of the application of the impugned statue previously will accordingly not be disturbed can be applied by the Supreme Court as the highest court of the country in matter arising under the Constitution to give such a retrospective effect to its decision as it things fit it to be moulded in accordance with the justice of the case or matter before it to be adhibited, however, with circumstances as an exceptional measures in the light of the circumstance under consideration".
I agree with those views.
In the instant case, this Court has not been called upon to rule as unconstitutional a statute which has been held valid in previous decisions over a long period of time and upon which people have arranged their lives or activities according to it for a long time.
It was a statute with a single purpose which was accomplished when the referendum was held.
In the circumstances, I would say that ground fourteen of the appeal should fail.
Date at Mengo this 7th day of July 2005.