The republic of uganda in the constitutional court of uganda at kampala coram



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THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA
AT KAMPALA
CORAM: HON.JUSTICE L.E.M.MUKASA-KIKONYOGO, DCJ.

HON.JUSTICE G.M. OKELLO, J.A.



HON. JUSTICE S.G. ENGWAU, J.A.

HON. JUSTICE C.N.B.KITUMBA, J.A.

HON. JUSTICE C.K.BYAMUGISHA, J.A.
CONSTITUTIONAL PETITIONS NOS 04 & 06 OF 2002
BETWEEN
BAKU RAPHAEL OBUDRA & OBIGA KAMA……………..PETITIONERS
AND
AGARDI DIDI

WADRI KASSIANO EZATI

ELECTORAL COMMISSION ................................................RESPONDENTS

RULING OF THE COURT

The petitioners Raphael Baku and Obiga Kania filed separate constitutional petitions seeking declarations under the provisions of Article 137 of the constitution of Uganda 1995. They are asking this court to make the following declarations:






  1. that section 67(3) of the Parliamentary Elections Act (Act 08/2001) hereinafter called the Act is inconsistent with Article 140 of the Constitution of the Republic of Uganda, 1995 and therefore null and void

  1. that section 67(3) of the Act infringes on the petitioners rights under the constitution of the Republic of Uganda,1995.

It was the petitioners prayers that orders be made declaring the petitioners right to appeal to the Supreme Court.

The facts which led to the institution of these petitions can be summarised as follows: the petitioners were candidates who contested in the Parliamentary Elections that were held throughout the country on the 26th day of June 2001. They lost. Being dissatisfied with the outcome of those elections, they filed election petitions in the High Court Registry at Gulu. On the 23/01/2002, the High Court (Kania J.) dismissed the petition of Baku Raphael Obdura and on the 24/01/2002, the same Court (Aweri Opio J.) dismissed the petition of Obiga Kania. They both filed appeals to the Court of Appeal which were dismissed with costs. It is the dismissal of those appeals that has given rise to the instant petitions.

When the matter came before us, for hearing, learned counsel for the respondents raised preliminary objections and this ruling is meant to determine the issues raised. Mr Paul Kiapi learned counsel for the first respondent, submitted that the crux of the matter in this petition is whether section 67(3) of the Parliamentary Elections Act (Act 08/01) is inconsistent with Article 140 of the 1995 Constitution. It is also claimed that the section infringes the rights of the petitioners under the Constitution. Counsel submitted that the first respondent is not a proper party to the petition. He pointed out that the petition is seeking declarations that a legislation made by the sixth Parliament is unconstitutional. He farther submitted that under Article 91 of the Constitution power to make laws is given to Parliament and the first respondent had no role to play in the enactment of the legislation.

The second objection raised by counsel is that the petition does not present any question requiring the interpretation of the constitution. He claimed that the petitioner(s) have not shown how any rights accruing to them have been infringed requiring

the intervention of this court. He prayed that we uphold the objections and strike out the petition.

Mr Okello-Oryem learned counsel for the second respondent in his submissions associated himself with the submissions of Mr Kiapi and contended that his client is not a proper party to the petition. On the petition itself, counsel submitted that it is statute-barred having been filed 30 days after the Act complained of was enacted. He pointed out that the Act was enacted on the 12th day of April 2001 when it received the Presidential Assent and it came into force on the 20th April 2001. He referred us to the provisions of rule 4(1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992,Directions, 1996 (Legal Notice No.4/96) for his contention. The rule provides that a petition of this nature has to be presented within a period of thirty days after the date of the breach of the Constitution complained of. Counsel also submitted that the petitioner participated in the enactment of the legislation as a member of the 6 Parliament and therefore should have been aware of the commencement date. He invited us to hold that the petition is statute-barred and dismiss it with costs.

While responding to the above submissions, Mr Rwaganika learned counsel for the petitioner(s) submitted that the issues raised by his learned friends have no merit. He submitted that the petition arises out of the election petition appeals and the respondents were parties. It was his contention that the respondents will be affected by the outcome of the Constitutional petition. Learned counsel submitted that in case the court finds that the respondents are not necessary parties, they can be struck out and the Attorney-General can be substituted. He referred us to the case of Ismail Serugo vs Kampala City Council S.C.A. No.2/98 for his contention.

On the second objection, counsel submitted that there was a cause of action. He pointed out that Article 137(3) of the Constitution, allows a person who alleges that an Act of Parliament or any other law is inconsistent with the provisions of the Constitution to petition the Constitutional Court for redress. It was his contention that the petitioner(s) have proceeded under Article 137(3)(a) alleging that section 67 Parliamentary Elections Act is inconsistent with Article 140 of the


Constitution. He pointed out that this is pleaded in paragraph 2(c) of the petition.

On the issue of limitation, counsel submitted that the petition is not time-barred. He claimed that the petitioners after losing the appeal in the Court of Appeal on the 17th May 2002 could not appeal to the Supreme Court because of the section he is complaining about. The petition was filed on the 07th June 2002 that is within the 30 days rule. He claimed that time does not begin to run unless one is aggrieved. It was his case that inconsistency is a continous process and you discover it when your rights are infringed. It was his prayer that the petition was filed in time. He invited us to overrule the objections.

We shall deal with the issues as raised beginning with whether the respondents are proper or wrong parties to the petition. Order 1 rule3 of the Civil Procedure Rules states that:



"All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise"

This rule provides what parties can be joined as defendants to a suit. Rule 5 provides that it is not necessary that every defendant shall be interested as to all the relief claimed in any suit against him. Furthermore, a suit cannot be defeated for mis-joinder or non-joinder of parties as long as the court is in a position to deal with the matter in controversy as regards the rights of the parties before it. Therefore before the court can strike out a party it has to be satisfied that there is no common question of law or fact between the parties which the court has to determine.

In the matter before us, the respondents are complaining that they have been dragged to court for nothing. We have looked at the petition and the submissions, which were made by both sides. We agree that the respondents are not proper or necessary parties to the petition. We have failed to find any question of law or fact common to all the parties that this court has to resolve. We agree that the two respondents should be struck out with costs. Counsel for the petitioner(s) applied to court that in the event of finding that the respondents are not proper parties to the petition, we should add the Attorney-General to the petition.

Order 10(2) of the C.P.R. gives court wide discretion to add parties at any stage of the proceedings either upon or without the application of either party on such terms as may be just. The test to be applied before doing so is whether this will enable the court to effectually and completely adjudicate upon and settle all questions involved in the cause or matter. Parties to a dispute can broadly be divided into necessary or proper. Necessary parties are those who are interested in the subject matter of the proceedings and in whose absence, therefore the subject matter cannot be fairly dealt with. Proper parties on the other hand are those who though not interested in the proceedings are added as parties for good reason. Generally, a defendant against whom no relief is sought will not be added against the wishes of the plaintiff because a plaintiff cannot be compelled to proceed against a defendant if he has no cause of action against him/her/it.

Is the Attorney- General a necessary party to this petition? Rule 5(2) of The Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992 Directions, 1996 (Legal Notice No.4/96) provides that if the Attorney-General is not a respondent to the petition, the Registrar shall serve him with a copy. Rule 6(4) of the same rules provide that a copy of the respondent's answer to the petition shall also be served on the Attorney-General even if he is not a respondent. The provisions of these two rules clearly indicate to us that the Attorney-General is a person who has a special interest in every constitutional petition and its outcome particularly where an Act of Parliament or any other law is being challenged. In the case of Dritto vs West Nile District Administration [19681 EA 428 Faud J. (as he then was) had occasion to consider whether the Attorney General should be heard on the grounds that his arguments would assist the court to come to a correct decision. At page 432 he said:



"It seems to me that the court has a wide discretion if it considers that the interests of justice would be served. In a sense it can be said that the Attorney-General is always interested that the law should be correctly be applied by the courts." In the case of Rwanyarare &Another Vs Attorney General Constitutional Petition Appeal No.1/99 this court and the Supreme Court had occasion to consider whether the Attorney-General should be joined as a party to constitutional petitions. Both courts agreed in principle that the Attorney-General was a necessary party to constitutional petitions because his presence

was necessary for the effectual and complete determination and adjudication on all important matters raised in the petitions In the matter now before us the petition alleges that certain provisions of the Parliamentary Elections Act were inconsistent with an article in the Constitution. The outcome of this petition is likely to have some effect on the other organs of Government. Therefore in exercise of the powers conferred on this court by order 10(2) (supra) the Attorney -General would have been added or substituted as a party to the petition.

The last and the most important issue to decide is whether the petition raises any matter for interpretation by this court i.e whether it discloses a cause of action. In order to determine that this regard must be had to the provisions of Civil Procedure Rules-Order 7 rule 1 provides that:

"The plaint shall contain the following particulars -

(a)... (b)... (c)... (d)...

(e) the facts constituting the cause of action and when it arose" And order 11(1) of the same rules provides for the rejection of a plaint if it does not disclose a cause of action.

A cause of action has been defined in many authorities and for purposes of the matter now before us, we shall refer to some of them. In the case of Major-General Tinyefuza vs Attorney-General Constitutional Appeal No.1/97(S.C.) in the lead judgment of Wambuzi C.J (as he then was) quoted with approval a passage from Mulla on the Code of Civil Procedure where the learned author at page 206 said:

"A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court..." Oder J.S.C. in his judgment said:

"Cause of action" may be defined as facts which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment." In the case of Serugo vs Kampala City Council Constitutional Appeal No.2/98 (S.C.) certified edition 1999-2000. In the judgment of Mulenga J.S.C. at page 185 said:



"A cause of action in a plaint is said to be disclosed if three essential elements are pleaded; namely, pleadings (i) of existence of the plaintiffs right, (ii) violation of that right, and (iii) of the defendant's liability for that violation "

As for constitutional petitions, the learned Judge said



"A petition brought under this provision (Article 137(3)) in my opinion, sufficiently discloses a cause of action, if it describes the act or omission complained of, and shows the provision of the constitution with which the act or omission is alleged to have been contravened by the act or omission, and prays for a declaration to that effect"

In the matter now before us the facts constituting the cause of action and when it arose are found in paragraph 2 of the petition which state that: "Your Petitioner states that the reasons relied upon in his petition are as under: (a) on the 26th day of July 2001 the petitioner filed in Gulu High Court Election Petition No.4 of 2001, which he lost in the



Judgement delivered on the 25 February 2002. See Annexture
"A"

  1. the Petitioner was dissatisfied with the Court's judgment, and accordingly appealed to the Court of Appeal in Election Appeal No.2 of 2002 which he lost in a judgment delivered on 17th day of May 2002.See Annexture "B".

  2. the petitioner is aggrieved and dissatisfied with the judgment and decision of the Court of Appeal and wishes to appeal against the said decision and judgment on issues involving points of law of great public importance requiring to be heard and decided upon by the Supreme Court but cannot appeal as the right of appeal to the Supreme Court has been barred by s. 67(3) of the Parliamentary Elections Act 2001.

  1. S.67 (3) of The Parliamentary Elections Act, 2001 is inconstistent with Art. 140 of the Constitution of the Republic of Uganda, 1995 and is therefore unconstitutional and null and void pursuant to Article 2(2) of the Constitution."



According to the above pleadings the petitioner is alleging that an Act of Parliament is inconsistent with the provisions of the 1995 Constitution. This means that the petition is based on the first limb of Article 137(2)(supra) which states 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;
is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and redress where appropriate."

Counsel for the first respondent submitted that there is nothing for us to interpret in this petition. On the other hand, Counsel for the petitioner maintained that his client is an aggrieved party and therefore has a cause of action. In order to resolve the issue, regard must be had to the pleadings. The petitioner is alleging that on 17th May 2002 he lost an appeal in the Court of Appeal and could not proceed to the Supreme Court because of section 67(3) (supra). In order for the petitioner to succeed, he had to show by his pleadings that the act of losing an appeal on the 17th May raises a matter for constitutional interpretation. We are saying so, because the petitioner claims that the cause of action accrued to him on that day, and not on the 20th April 2001 when the Act came into force. In our view, the act of losing an appeal per se does not call for the interpretation of the Constitution. Admittedly; the petitioner is an aggrieved party because lost an appeal. This alone is insufficient. In the

case of SERUGO (supra) it was held that it is not an essential element for the petitioner to be aggrieved by an act or omission before bringing a petition. It was further held that the article gives the right to petition not only to a person aggrieved by, but also to any other person who alleges 5 the inconsistency with or contravention with the provision of the Constitution.

The right of appeal to the Supreme Court is governed by the provisions of Article 132 of the Constitution. It says: 1) "The Supreme Court shall be the final court of appeal 10 2) An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law.


3)

4) "


Section 67(3) of the Parliamentary Elections Act provides that: "The decision of Court of Appeal under this section is final"

According to the principles stated in Serugo (supra), the petitioner had to show that the provisions of the section, he is complaining about, violated a right guaranteed by the Constitution. The instant petition does not allege those facts, which allegedly contravene the provisions of the Constitution or those that are inconsistent with its provision. For those reasons we think the petition does not disclose a cause of action.


There would be nothing for us to interpret. The petition would be rejected with costs.




Dated at Kampala this 8th day of November 2002.

L.E.M.Mukasa-Kikonyogo
Deputy Chief Justice
G.M.Okello

Justice of Appeal


S.G.Engwau

Justice of Appeal
C.N.B.Kitumba

Justice of Appeal
C.K.Byamugisha
Justice of Appeal

RULING OF THE COURT

The petitioners Raphael Baku and Obiga Kania filed separate constitutional petitions seeking declarations under the provisions of Article 137 of the constitution of Uganda 1995. They are asking this court to make the following declarations:



1. that section 67(3) of the Parliamentary Elections Act (Act 08/2001) hereinafter called the Act is inconsistent with Article 140 of the Constitution of the Republic of Uganda, 1995 and therefore null and void

i

2. that section 67(3) of the Act infringes on the petitioners rights under the constitution of the Republic of Uganda,1995.

It was the petitioners prayers that orders be made declaring the petitioners right to appeal to the Supreme Court.


The facts which led to the institution of these petitions can be summarised as follows: the petitioners were candidates who contested in the Parliamentary Elections that were held throughout the country on the 26th day of June 2001. They lost. Being dissatisfied with the outcome of those elections, they filed election petitions in the High Court Registry at Gulu. On the 23/01/2002, the High Court (Kania J.) dismissed the petition of Baku Raphael Obdura and on the 24/01/2002, the same Court (Aweri Opio J.) dismissed the petition of Obiga Kania. They both filed appeals to the Court of Appeal which were dismissed with costs. It is the dismissal of those appeals that has given rise to the instant petitions.

When the matter came before us, for hearing, learned counsel for the respondents raised preliminary objections and this ruling is meant to determine the issues raised. Mr Paul Kiapi learned counsel for the first respondent, submitted that the crux of the matter in this petition is whether section 67(3) of the Parliamentary Elections Act (Act 08/01) is inconsistent with Article 140 of the 1995 Constitution. It is also claimed that the section infringes the rights of the petitioners under the Constitution. Counsel submitted that the first respondent is not a proper party to the petition. He pointed out that the petition is seeking declarations that a legislation made by the sixth Parliament is unconstitutional. He further submitted that under Article 91 of the Constitution power to make laws is given to Parliament and the first respondent had no role to play in the enactment of the legislation.

The second objection raised by counsel is that the petition does not present any question requiring the interpretation of the constitution. He claimed that the petitioner(s) have not shown how any rights accruing to them have been infringed requiring the intervention of this court. He prayed that we uphold the objections and strike out the petition.

Mr Okello-Oryem learned counsel for the second respondent in his submissions associated himself with the submissions of Mr Kiapi and contended that his client is not a proper party to the petition. On the petition itself, counsel submitted that it is statute-barred having been filed 30 days after the Act complained of was enacted. He pointed out that the Act was enacted on the 12th day of April 2001 when it received the Presidential Assent and it came into force on the 20 April 2001. He referred us to the provisions of rule 4(1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992,Directions. 1996 (Legal Notice No.4/96) for his contention. The rule provides that a petition of this nature has to be presented within a period of thirty days after the date of the breach of the Constitution complained of. Counsel also submitted that the petitioner participated in the enactment of the legislation as a member of the 6th Parliament and therefore should have been aware of the commencement date. He invited us to hold that the petition is statute-barred and dismiss it with costs.


While responding to the above submissions, Mr Rwaganika learned counsel for the petitioner(s) submitted that the issues raised by his learned friends have no merit. He submitted that the petition arises out of the election petition appeals and the respondents were parties. It was his contention that the respondents will be affected by the outcome of the Constitutional petition. Learned counsel submitted that in case the court finds that the respondents are not necessary parties, they can be struck out and the Attorney-General can be substituted. He referred us to the case of Ismail Serugo vs Kampala City Council S.C.A. No.2/98 for his contention.

On the second objection, counsel submitted that there was a cause of action. He pointed out that Article 137(3) of the Constitution, allows a person who alleges that an Act of Parliament or any other law is inconsistent with the provisions of the Constitution to petition the Constitutional Court for redress. It was his contention that the petitioner(s) have proceeded under Article 137(3)(a) alleging that section 67 Parliamentary Elections Act is inconsistent with Article 140 of the Constitution. He pointed out that this is pleaded in paragraph 2(c) of the petition.


On the issue of limitation, counsel submitted that the petition is not time-barred. He claimed that the petitioners after losing the appeal in the Court of Appeal on the 17th May 2002 could not appeal to the Supreme Court because of the section he is complaining about. The petition was filed on the 07th June 2002 that is within the 30 days rule. He claimed that time does not begin to run unless one is aggrieved. It was his case that inconsistency is a continuous process and you discover it when your rights are infringed. It was his prayer that the petition was filed in time. He invited us to overrule the objections.
We shall deal with the issues as raised beginning with whether the respondents are proper or wrong parties to the petition. Order 1 rule3 of the Civil Procedure Rules states that:

"All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise"
This rule provides what parties can be joined as defendants to a suit. Rule 5 provides that it is not necessary that every defendant shall be interested as to all the relief claimed in any suit against him. Furthermore, a suit cannot be defeated for mis-joinder or non-joinder of parties as long as the court is in a position to deal with the matter in controversy as regards the rights of the parties before it. Therefore before the court can strike out a party it has to be satisfied that there is no common question of law or fact between the parties which the court has to determine.
In the matter before us, the respondents are complaining that they have been dragged to court for nothing. We have looked at the petition and the submissions, which were made by both sides. We agree that the respondents are not proper or necessary parties to the petition. We have failed to find any question of law or fact common to all the parties that this court has to resolve. We agree that the two respondents should be struck out with costs. Counsel for the petitioner(s) applied to court that in the event of finding that the respondents are not proper parties to the petition, we should add the Attorney-General to the petition.

Order 10 (2) of the C.P.R.gives court wide discretion to add parties at any stage of the proceedings either upon or without the application of either party on such terms as may be just. The test to be applied before doing so is whether this will enable the court to effectually and completely adjudicate upon and settle all questions involved in the cause or matter. Parties to a dispute can broadly be divided into necessary or proper. Necessary parties are those who are interested in the subject matter of the proceedings and in whose absence, therefore the subject matter cannot be fairly dealt with. Proper parties on the other hand are those who though not interested in the proceedings are added as parties for good reason. Generally, a defendant against whom no relief is sought will not be added against the wishes of the plaintiff because a plaintiff cannot be compelled to proceed against a defendant if he has no cause of action against him/her/it.

Is the Attorney- General a necessary party to this petition? Rule 5(2) of The Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992 Directions, 1996 (Legal Notice No.4/96) provides that if the Attorney-General is not a respondent to the petition, the Registrar shall serve him with a copy. Rule 6(4) of


the same rules provide that a copy of the respondent's answer to the petition shall also be served on the Attorney-General even if he is not a respondent. The provisions of these two rules clearly indicate to us that the Attorney-General is a person who has a special interest in every constitutional petition and its outcome particularly where an Act of Parliament or any other law is being challenged. In the case of Dritto vs West Nile District Administration [1968] EA 428 Faud J. (as he then was) had occasion to consider whether the Attorney General should be heard on the grounds that his arguments would assist the court to come to a correct decision. At page 432 he said:



"It seems to me that the court has a wide discretion if it considers that the interests of justice would be served. In a sense it can be said that the Attorney-General is always interested that the law should be correctly be applied by the courts." In the case of Rwanyarare & Another Vs Attorney General Constitutional Petition Appeal No.1/99 this court and the Supreme Court had occasion to consider whether the Attorney-General should be joined as a party to constitutional petitions. Both courts agreed in principle that the Attorney-General was a necessary party to constitutional petitions because his presence

was necessary for the effectual and complete determination and adjudication on all important matters raised in the petitions In the matter now before us the petition alleges that certain provisions of the Parliamentary Elections Act were inconsistent with an article in the Constitution. The outcome of this petition is likely to have some effect on the other organs of Government. Therefore in exercise of the powers conferred on this court by order 10(2) (supra) the Attorney -General would have been added or substituted as a party to the petition.


The last and the most important issue to decide is whether the
petition raises any matter for interpretation by this court i.e
whether it discloses a cause of action. In order to determine that
this' regard must be had to the provisions of Civil Procedure
Rules. Order 7 rule 1 provides that:

"The plaint shall contain the following particulars -

(a)... (b)... (c)... (d)...

(e) the facts constituting the cause of action and when it arose" And order 11(1) of the same rules provides for the rejection of a plaint if it does not disclose a cause of action.

A cause of action has been defined in many authorities and for purposes of the matter now before us, we shall refer to some of them. In the case of Major-General Tinyefuza vs Attorney-General Constitutional Appeal No.1/97(S.C.) in the lead judgment of Wambuzi C.J (as he then was) quoted with approval a passage from Mulla on the Code of Civil Procedure where the learned author at page 206 said:

"A cause of action means every fact, which, if traversed, it would he necessary for the plaintiff to prove in order to support his right to a judgment of the court..." Oder J.S.C. in his judgment said:

"Cause of action "may be defined as facts which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment." In the case of Serugo vs Kampala City Council Constitutional Appeal No.2/98 (S.C.) certified edition 1999-2000. In the judgment of Mulenga J.S.C. at page 185 said:


"A cause of action in a plaint is said to be disclosed if three essential elements are pleaded; namely, pleadings (i) of existence of the plaintiffs right, (ii) violation of that right, and (iii) of the defendant's liability for that violation"
As for constitutional petitions, the learned Judge said
""A petition brought under this provision (Article 137(3)) in my opinion, sufficiently discloses a cause of action, if it describes the act or 10 omission complained of, and shows the provision of the constitution with which the act or omission is alleged to have been contravened by the act or omission, and prays for a declaration to that effect"

In the matter now before us the facts constituting the cause of action and


when it arose are found in paragraph 2 of the petition which state that:
"Your Petitioner states that the reasons relied upon in his
petition are as under:


(a) on the 26th day of July 2001 the petitioner filed in Gulu High Court Election Petition No.4 of 2001, which he lost in the

Judgement delivered on the 25 February 2002. See Annexture "A"

(b) the Petitioner was dissatisfied with the Court's judgment, and
accordingly appealed to the Court of Appeal in Election AppealNo.2 of 2002 which he lost in a judgment delivered on 17
th day of May 2002.See Annexture "B".

(c) the petitioner is aggrieved and dissatisfied with the judgment
and decision of the Court of Appeal and wishes to appeal against
the said decision and judgment on issues involving points of law of great public importance requiring to be heard and decided upon by the Supreme Court but cannot appeal as the right of appeal to the Supreme Court has been barred by s. 67(3) of the Parliamentary Elections Act 2001.

(d) S.67 (3) of The Parliamentary Elections Act, 2001 is inconstistent


with Art. 140 of the Constitution of the Republic of Uganda, 1995 and is therefore unconstitutional and null and void pursuant to Article 2(2) of the Constitution."

According to the above pleadings the petitioner is alleging that an Act of 20 Parliament is inconsistent with the provisions of the 1995

Constitution. This means that the petition is based on the first limb of Article 137(2)(supra) which states 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;

is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and redress where appropriate."

Counsel for the first respondent submitted that there is nothing for us to 10 interpret in this petition. On the otherhand, Counsel for the petitioner maintained that his client is an aggrieved party and therefore has a cause of action. In order to resolve the issue, regard must be had to the pleadings. The petitioner is alleging that on 17th May 2002 he lost an appeal in the Court of Appeal and could not proceed to the Supreme 15 Court because of section 67(3) (supra). In order for the petitioner to

succeed, he had to show by his pleadings that the act of losing an appeal on the 17th May raises a matter for constitutional interpretation. We are saying so, because the petitioner claims that the cause of action accrued to him on that day, and not on the 20th April 2001 when the Act came into 20 force. In our view, the act of losing an appeal per se does not call for the interpretation of the Constitution. Admittedly; the petitioner is an aggrieved party because lost an appeal. This alone is insufficient. In the

case of SERUGO (supra) it was held that it is not an essential element for the petitioner to be aggrieved by an act or omission before bringing a petition. It was further held that the article gives the right to petition not only to a person aggrieved by, but also to any other person who alleges 5 the inconsistency with or contravention with the provision of the Constitution.

The right of appeal to the Supreme Court is governed by the provisions of Article 132 of the Constitution. It says: 1) "The Supreme Court shall be the final court of appeal 10 2) An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law.
3)

4) "


Section 67(3) of the Parliamentary Elections Act provides that: "The decision of Court of Appeal under this section is final"

According to the principles stated in Serugo (supra), the petitioner had to show that the provisions of the section, he is complaining about, violated a right guaranteed by the Constitution. The instant petition does not allege those facts, which allegedly contravene the provisions of the Constitution or those that are inconsistent with its provision. For those reasons we think the petition does not disclose a cause of action.



There would be nothing for us to interpret. The petition would be rejected with costs.

Dated at Kampala this 8th day of November 2002.
L.E.M.Mukasa-Kikonyogo

Deputy Chief Justice

G.M.Okello

Justice of Appeal
S.G.Engwau
Justice of Appeal

C.N.B.Kitumba
Justice of Appeal
C.K.Byamugisha

Justice of Appeal





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