Attorney General & Another & Basalirwa & 5 Others v Kwizera (Constitutional Appeal 2 of 2020; Constitutional Appeal 3 of 2020) [2022] UGSC 3 (6 January 2022)

#### **REPUBLIC OF UGANDA**

### IN THE SUPREME COURT OF UGANDA

### AT KAMPALA

## **CONSOLIDATED CONSTITUTIONAL APPEALS NOS: 02 & 03 OF** 2020

(Arising from Constitutional Petition No. 20 of 2018)

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: <table>

ELECTORAL COMMISSION ::::::::::::::::::::::: APPELLANT

#### AND

- **1.** <sup>1</sup> HON. BASALIRWA ASUMAN HON. DR. TUMWESIGYE ELIODA 3. HON. OCAN PATRICK 4. HON. LOKII PETER ABRAHAMS ...... CROSS-APPELLANTS 5. HON. RWABURINDORE BISHANGA **TARSIS** - 6. HON. HASHIM SULAIMAN

**VS**

EDDIE KWIZERA: ....................................

# CORAM: KISAAKYE; ARACH. AMOKO; MWONDHA; MUGAMBA; MUHANGUZI; TUHAISE; CHIBITA; JJ. S. C

t'I

rising .from the Decision, Decree and. Orders of the Constitutional Court of Uoandq. at Kq.mpala lAlfonse C. Owinu - Dollo, DCJ, Kenneth Kakuru, . P. J|I. S Egonda Ntende, Barishoki Cheborion. Christooher Madrama, JJAI deliuered ot Kqmpala on 2Vh December, 2079, in Constitutional Petition No. 2O of 2O18)

## JUDGMENT OF MIKE J, CHIBITA JSC

The consolidated appeals were separately filed by the Attorney General and the Electoral Commission, hereinafter referred to as the appellants, against Eddie Kwizera hereinafter referred to as the respondent, challenging the decision of the Constitutional Court in Constitution Petition No. 20 of 2018.

The Constitutional Court allowed the appea-l in part finding that the 9th August 2016 parliamentary resolution was not unconstitutional. The Court, however, found that the seats contested for in the impugned constituencies were not vacant in order to require the conduct of elections by the Electoral Commission, that the elections held in the 6 impugned constituencies were null and void, that the right to a fair hearing of the affected MPs was not derogated, and that the respondent (then petitioner) would be paid half the costs of the petition.

The Members of Parliament in the 6 affected constituencies, namely: Hon. Basalirwa Asuman, Hon. Dr. Tumwesirye Elioda, Hon. Ocan Patrick, Hon. Lokii Peter Abrahams, Hon. Rwaburindore Bishanga Tarsis and Hon. Hashim Sulaiman who called themselves "respondents/cross-appellants" filed a "cross-appeal" challenging the derogation of their right to be heard.

## Background:

The background to the appeal can be summarized as follows:

On 18th February, 2016, lhe Republic of Uganda held its general elections for the office of the President and for Members of Parliament for the existing 29O constituencies.

On 9th August, 20 16, approximately 7 months after the said general elections, the Parliament of Uganda passed a resolution prescribing the number of constituencies to be 296. The additional parliamentary constituencies created after the 2016 general elections included: Apac Municipality; Sheema Municipality; Ibanda Municipality; Nebbi Municipality; Bugiri Municipality and Kotido Municipality.

Following the said resolution, the Electoral Commission organized, supervised and conducted elections in the impugned constituencies in 2018. On 18th May,2018, before the said elections were held, Eddie Kwizera, the respondent, petitioned the Constitutional Court against the appellants (then respondents) Attorney General and the Electoral Commission under Article 137 challenging the constitutionality of several acts and processes surrounding the

creation of the 6 impugned constituencies and the conduct of elections therein. The specific allegations as set out in the petition are as follows:

- al The resolution of Parliament dated 9th August 2O16 dividing Uganda into 296 constituencies is inconsistent with and/or in contravention of Articles 61(1) (c), 63{2) arrd 294 of the Constitution. - b) The act of creating Apac Municipality, Sheema Municipality, Ibanda Municipality, Nebbi Municipality, Bugiri Municipality and Kotido Municipality as constituencies by Parliament without the involvement of the 2"d respondent is in contravention of Articles 61(1) (c), 63(2) and (5), and,294 of the Constitution. - c) The act of the second respondent in organizing, conducting and/or supenrising elections in the municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido Municipalities is inconsistent with and contravenes Article 63(6) of the Constitution. - d) The act of Parliament demarcating boundaries of constituencies deprives the petitioner the right ofappeal and is therefore inconsistent with Article 64(2) and (3) of the Constitution. - e) The act of the second respondent in organizing, conducting or supervising a new and curios creation of midterm elections is inconsistent with and contravenes article 61(2)and 81(2) and (3) of the Constitution.

- Q The holding of elections which are neither residual, by or a general election is inconsistent with Article 61(1) (b) of the Constitution. - g) The act of amending an Act of Parliament by way of a parliamentary resolution is inconsistent with Article 91(1) of the Constitution. - hf The act of parliament in asserting that under Article 63(1f Uganda was divided into 296 constituencies as on 9th August 2O16 is inconsistent with Article 294 of the Constitution.

He sought for the following declarations:

- (i) The creation of the municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido as constituencies be declared null and void; - (iil That the holding of the said elections contravenes Article 63(6) of the Constitution; - (iii) That the 9thAugust, 2O16 resolution be declared null and void; - (iv) A permanent injunction restraining the 2"d applicant from holding elections in the impugned constituencies be issued; and - (v) costs of the petition be granted.

The appellants (then respondents) opposed the petition on grounds that the petition was misconceived, frivolous and vexatious and that it raised no matters for interpretation by the Constitutiona-l Court.

The Constitutional Court by unanimous decision allowed the petition in part and made the following declarations and orders:

- aa <sup>1</sup> In increasing the number of Parliamentary constituencies to 296, Parliament exercised its mandate provided for under Article 63(1) of the Constitution, to prescribe the number of Parliamentary constituencies into which Uganda shall be divided. - 2 The involvement of Parliament in the creation of the Municipalities of Apac, Bugiri, Ibanda, Kotido, Nebbi, and Sheema was lawful; as under the provisions of the Local Governments Act, Parliament has a duty to approve the creation of Municipalities. - 3 On the evidence, the Electoral Commission never made any demarcation of boundaries for the holding of the impugned elections in the contested municipalities of Apac, Bugiri, Ibanda, Kotido, Nebbi and Sheema; against which an appeal could lie pursuant to the provision of Article 6al2l of the Constitution. - 4 The Parliamentary Elections held in the municipalities of Apac, Bugiri, Ibanda, Kotido, Nebbi and Sheema in the middle of a Parliamentary term, and yet these were not by elections, were unlawful, null and void, as they contravened the provisions of article 63(61 of the Constitution. - 5 In the event, the following orders are hereby made:

- (a)The Parliamentary elections held in the municipalities of Apac, Bugiri, Ibanda, Kotido, Nebbi and Sheema are hereby nullified. - (b)The Electoral Commission shall, within one year hereof, file in the Constitutional Court evidence of the prescription by Parliament of the number of constituencies in Uganda for the next general elections, pursuant to the provisions of article 294 and, 63( 1) of the Constitution. - (c)The Electoral Commission shall, within ten months hereof file, in the Constitutional Court, evidence of its demarcation of the boundaries of constituencies in accordance with the prescription made by Parliament pursuant to the provisions of Article 63 of the Constitution. - (d)The respondents shall pay to the petitioner, half of the taxed costs of the petition." (sic)

The appellants being dissatisfied with part of the judgment of the Constitutional Court filed their respective Notices of Appeal on 30rh December, 2019. That sarne day they hled Constitutional Applications No. 1 and 3 of 2O2O on the same day for stay of execution of the orders of the Constitutional Court. Execution of the orders of the Constitutional Court was stayed pending the determination of these appeals.

The Attorney General's memorandum of appeal contained the following grounds:

1. The learned justices of the Constitutional Court erred in law when they failed to properly construe and interpret Article 63f of the Constitution and held that;

the creqtion of neu constihtencies does not lead to ang aacancg in representation in Pq.rliament of the newlg created constituencg uhen the creation is made afier the holding of general elections.

- 2. Tlae learned Hon. Justices of the Constitutional Court erred in law when they held that the right to fair hearing can only be asserted, by the affected MPs in the six constituencies by the petition, if there was a lawful vacancy in an office of the MP that had been contested for. - 3. The learned Hon. Justices ofthe Constitutional Court erred in law and fact when they held that the Respondent shall be paid halfthe taxed costs ofthe petition.

The Appellants prayed Court to allow the appeal, set aside the declarations and orders of the Constitutional Court and for costs of the appeal.

The Electora-l Commission's memorandum of appea,l contained 6 grounds that read as follows:

1. The learned Justices of the Constitutional Court erred in law when they exercised their jurisdiction with material irregularity and /or injustice by holding that the elections in the municipalities of Apac, Ibanda, Sheema, Nebbi, Bugiri and Kotido are a nullity and cannot stand.

### Cross-appeal

The cross-appeal was filed under Rules 74, 76,84 and 87 (1), (2) and (3) of the Rules of this Court and was based on one ground which read as follows:

1. The Learned Justices of the Constitutional Court erred in law and in fact when they condemned the Cross-Appellants to lose their seats in Parliament without any hearing as they were neither made parties to the Petition nor served with a Hearing Notice.

The cross- appellants prayed court to find that the decision, decree and orders of the Constitutional Court is a nullity, that the decision, decree and orders of the Constitutional Court be set aside, and for costs of the appeal.

## Representation:

At the hearing, the parties were represented as foilows:

The Attorney General was represented by Mr. Wanyama Kodoli, Principal State Attorney;

The Electoral Commission was represented by Mr. Enock Kugonza

The Respondent, who was personally in court, was represented by Mr. Dan Waldera Oga1o.

The Cross Appellants were represented by Mr. Kandeebe Ntambirweki

I wish first to deal with the preliminary objection that challenged the competence of the cross appeal before this Court. - 2. The learned Honourable Justices of the Constitutional Court erred in law when they held that the right to fair hearing can only be available in the process of challenging a person who had been elected in an office envisaged in the Constitution. - 3. The Constitutional Court erred in law when they failed to correctly apply the cardinal principle of constitutional interpretation of interpreting the constitution as a whole and arrived at an erroneous conclusion. - 4. The Honourable Justices of the Constitutional Court erred in law when they failed to properly construe and interpret the provisions of Article 63 (2) of the Constitution in finding that the creation ofnew constituencies does not lead to any vacancy in representation in Parliament after holding of the General elections. - 5. The Honourable Justices of the Constitutional Court erred in law when they failed to properly construe and interpret Article 63 of the Constitution in applying the considerations for demarcation of Constituencies by holding that elections cannot be conducted where there is no vacancy. - 6. The learned Honourable Justices of the Constitutional Court erred in law and fact when they held that the respondent be paid halfofthe taxed costs ofthe petition.

It was the Electoral Commission's prayer that the appeal be allowed with costs.

party to the constitutional petition. He prayed this court to find that the purported cross appeal is improperly before this court and that it be struck out with costs.

In response, Mr. . Kandeebe Ntambirweki, learned counsel for the cross- appellants opposed the objection,. He submitted that the cross appeal was properly before this Court lpcause the cross appellants were persons directly affected by the decision of the Constitutional Court who were served with a notice of appeal and that that automatically made them respondents under Rule 74 of the Rules of the Court. He submitted also that the Supreme Court rules permit an aqgrieved part5r to serve a Notice ofAppeal on any person affected by the decision which then eltitles that person to file a notice of Address of service and that the person thereby becomes a respondent under n:.le 76 and 87(1) of the Court's Rules. Counsel further argued that the fact that the cross appellants were condemned unheard gave them a right to cross appeal.

He contended that their right to cross appeal could not be taken away because the only reason they were never party to the Constitutional Court petition was the fault of the respondent who should have joined them as respondents but failed to do so.

Counsel also argued against the respondent's reliance on the case of Baku Raphael Obudra & Anor vs. Attorney General, Const. Appea1 No. 1 of 2005 contending that it is quite distinguishable from the instant facts since this Court was not being called upon to act as a court of original jurisdiction. He added that the decision of the

#### Submissions:

At the beginning of the hearing, Mr. Dan Wandera Ogalo, learned counsel for the respondent raised a preliminary objection against the competence of the Cross- Appeal. He contended that the purported cross-appellants had no locus standi to appear before the Court and that the Court also had no jurisdiction to entertain the purported cross-appeal because it was alien to our laws.

He based his argument on the fact that the purported cross appellants were never party to Constitutional Petition No. 20 of 20 18, which formed the basis of this appeal, and that the Court lacks the jurisdiction to entertain constitutiona-l matters since it is not a court of original jurisdiction. He further argued that the purported cross appellants were never named as respondents in this appeal by the appellants and therefore could not baptize themselves the same by mere Iiling of the purported cross- appeal.

Counsel relied on Article 132(3) of the Constitution and section 4 of the Judicature Act which prescribe the appellate jurisdiction of the Supreme Court. He argued against the cross appellants'reliance on rules 72(1) and 87 of the Judicature (Supreme Court Rules) Directions. He also argued against the cross appellants' contention that they were entitled to cross appeal because they were served with a notice of appeal as persons being affected by the decision of the Constitutional Court. He submitted that jurisdiction is a creature of statute and that mere receipt of a notice of appeal did not in itself confer a right of appeal or cross appeal on persons that were never

Constitutional Court had the effect of condemning them unheard. He submitted that the cross-appeal is properly before this court as the cross-appellants followed the requirements of the law as envisaged in Judicature (Supreme Court Rules) Directions SI i3-11 to the letter. He thus prayed for the dismissal of the preliminary objection with costs.

In rejoinder, counsel for the respondent reiterated his earlier submissions.

### Resolution:

The question being raised in this preliminary objection regards this Court's jurisdiction. The term jurisdiction underpins the power of a court to entertain and determine a legal question. This Court defined the term turisdiction" in the case of Attorney General vs. Tinyefuza SCCA No. I of 1997 where Wambuzi CJ, quoted with approval the definition by Mulla on the Code of Civil Procedure at page 225. This appears at page 21 of his judgment. It reads as follows:

"Jurlsdiction is meant the authorttg of which a court has to declde uthether matters that are litigate before lt or to talec cognizance of matters presented in a formol utag Jor tts declsion. Tlrc ltmits of thts authoritg are lmposed bg statute, chdrter or commisslon und.er whlch the court ls constltuted and mag be extended or restricted bg the like meq.ns. If no restriction or llmlt ls lmposed, the jurisdiction is unllmited."

This position was further re-echoed in this Court's decision in the case of Baku Raphael Obudra & Anor vs. Attorney General, (supra)which was rightly relied on by the respondent. In that case, Odoki CJ, in his judgment stated inter alia:

# "It is trlte law that there ls no such thing os inherent appellate jurisdtctton. Jut'lsdictlon must be specificallg created bg laut; tt cannot be infeted or implied."

The need for specificity in the creation of appellate jurisdiction of this Court is further explained in the same judgment of Baku Raphael Obudra vs. Attorney (supra) where Odoki CJ, while holding that Article 140 of the Constitution did not confer appellate jurisdiction to the Supreme Court in Parliamentary Elections Petitions explained as follows:

"In mg ulew, if the framers of the Constltution had intended to proaide in the Constitution a rtght of appeal to the Supreme Court, in Parllamentzry election petitions, thea could haae done so exaressllt as thea did ruith a als in Constitutional mo.tters under Article 132(3) as.follouts:

"Ang parUt aggrieaed bU a decision o.f the Court of Appeal sittins as a Constitutional Coutt is entitled to appeal to the Suoreme Coutt, rrqainst the decision and. accord.inght an appeal sholl be to the Supreme Court under Clause (2) of this Article." (Emphasis mine)

By the provisions of Article 132(3) the jurisdiction of the Supreme Court sitting as an appellate court in constitutional matters is defined.

The above extract clearly shows the enabling law for appea-ls in the Supreme Court in Constitutional matters and also brings out clearly who can appeal to the Supreme Court.

The restriction or limit imposed by Article 132(3) is that only a "parfy" aggrieved by a decision of the Court of Appea-l sitting as the Constitutional Court can seek audience before this Court. This therefore, begs the question, who is "any party" referred to in the provision of Article 132(3)?

Black's Law Dictionary 8th Ed.2OO4 at page 3548 defines the term "party" to mean:

## "One bg or against uhom a lolasuit is brought <a pan'tg to the lowsuit>".

In my view, I would hold that unless a party took part in proceedings in the Constitutional Court and following this participation, the party was aggrieved by the decision of that court, he or she does not have /ocus whatsoever before this Court.

In the case before us, the "cross appellants" who were not pa-rty to the proceedings in the Constitutiona-l Court sought to rely on the provisions of Rule 74,76,84, and 87(1) of the Court's Rules as being rules that created this Court's jurisdiction to entertain their case. Their counsel further argued that as persons directly affected by the

decision of the Constitutional Court who were condemned unheard and served with a notice of appeal, they had the locus to apply to this Court for the nullification and setting aside of the decision and orders of the Constitutional Court.

I must reject this argument based, firstly, on the provision of Article 132(3) which creates the jurisdiction and restrictions of this Court. Secondly the "cross appellants" do not lit the definition of cross appellants as envisaged in law.

A cross appeal is defined by Black's Law Dictionary (ibid)at page 302 to mean:

# "An appeal bg the appellee heq.rd at the so,me time as the appellont's appeal."

The relevant provision in this Court's Rules regarding the procedure for initiating a cross- appeal is in Rule 87(1) which provides as follows:

## Notice o.,f cross- appeal

(1) A respondent who desires to contend at the hearing ofthe appeal in the coutt that the decision of the Court of Appeal or ang part of it shoutd be uaried or reuersed, either in ang event or in the euent of the appeal being allouted. in uhole or in port, shall give notice to that effect, specifging the grounds of his or her contention and the nature of the order which he or she proposes to osk the court to make, or to make in that eaent, as the case mag be. (Emphasis added)

The aforementioned rule clearly shows that a cross appellant should be an appellee or a respondent named in the appeal pending before the Court who is desirous of expanding the relief granted to him/her/it or to lessen the relief granted to the appellant. In other words, for one to qualify as a cross appellant, he/she ought to have been party to the proceedings in the lower court from which the appeal emanates, he/she ought to have prevailed over the appellant in the proceedings in the lower court in all or some aspects, he or she ought to have been named as respondent in the proceedings pending before the appellate court, and he or she ought to request the appellate court to review some aspects or aspects of the judgment of the lower court and not to require the appellate court to uphold the decision of the lower court.

The "cross appellants" herein were none of the above. This in itself disentitles them from having any legal standing in this Court.

Therefore, the preliminary objection against the competence of the "cross appeal" ought to succeed.

The "cross-appea1" is accordingly dismissed with costs to the respondent.

I now wish to deal with the issues that arose from the appellants' memoranda of appeal. As already noted, the Electora-l Commission's memorandum had 6 grounds of appeal whereas that of the Attorney General contained 3 grounds. When merged the issues for this court's determination will comprise of three main issues namely:

1,7

1. IVhether the creation of new constituencies/ Counties before the dissolution of Parliament created vacancies in the l0th Parliament?

2. lVhether the right of the six affected MPs' to be heard was derogated?

3. Whether the Constitutional Court rightly ordered for half the taxed costs to be paid to the respondent.

## Ground 1

Mr. Enock Kugonza who represented the Electoral Commission and Mr. Wanyama Kodoli, who represented the Attorney General argued this ground separately. I wish to combine their submissions because most of what was submitted by either counsel was similar.

Counsel contended that the Constitutional Court erred when it found that the creation of new constituencies did not necessarily result into the creation of a vacancy in Parliament. It was their argument that there was a misinterpretation of Article 63(2) which requires the Electora-l Commission to ensure that each county approved by Parliament has at least one member of parliament while demarcating constituencies. They argued further that the provisions of Article 63(2) that require the Electoral Commission to ensure that each county, as approved by Parliament, has at least one member of parliament, are mandatory in nature and that the court's decision negated that. Counsel for the appellants faulted the Constitutional Court for erroneously hnding that the only way in which a vacancy can be created in Parliament in the middle of a term would be under the circumstances envisaged in Article 83. They argued that the relevant article regarding the creation of vacancies in the middle of an electoral term would be Article 81(2) which mandates the Clerk to Parliament to notify the Electora-l Commission in writing within ten days after a parliamentary seat fa-lls vacant so that a by election is held within sixty days after the vacancy has occurred. They argued further that the provision has a general application to it since it states that whenever a vacancy exists in parliament and that it is not limited to the vacancy existing from circumstances outlined in article 83(1). They contended that Article 83 is not exhaustive about all instances under which a parliamentary seat can fall vacant because it does not even provide for the death of a Member of Parliament. It was their submission that had the Constitutional Court properly applied the relevant laws especially the Local Govemment Act, it would have come to the correct conclusion that the mere creation of <sup>a</sup> geographical entity by parliament has the consequence of causing an existing constituency to fall into more than one count5r which the Electora-l Commission would have to remedy by demarcating the new constituency.

He argued further that the Constitutional court did not properly define the term "county" which would be crucial in the interpretation of the provision and that the court's analysis of the Local Government Act especially some sections was not helpful. He contended that the

Court's failure to aneJyze sections 1,3,4,5 and a5 (l)(a)(i) of the Local Government Act led to the wrong definition of the term countlr. He specifically referred Court to section 3(4) of the Local Government Act which defines a local government in a municipality to include a municipal, council and a municipal division. He argued that the word count5r is synonymous with the word municipality under electoral laws.

He submitted that the lower court having found that the prescription and creation of the municipalities by parliament was constitutional, it was an error for the same court to follow this finding with one that stated that the electoral commission was under no obligation to hold and supervise elections in the new municipalities. He submitted further that it was erroneous for the Constitutional Court to find that no lau{ul vacancies were created before demarcation of <sup>a</sup> constituency were created seeing as the requirement to demarcate was only to ensure that no constituency falls within more than one county. He added that the demarcation of the newly created constituencies could not await the next general election as this would have the consequence of disenfranchising the electorate those areas which would infringe the right to representation under article 1(a) of the Constitution.

He contended that midterm or by --elections that were held by the Electoral Commission as envisaged in Article 78 (c) were constitutional and that the only restriction pertaining to the holding

of such elections was one that prohibited the holding of such elections within 6 months before the holding of the general elections.

Counsel for the appellants also faulted the Constitutional Court for usurping the jurisdiction of the High Court when it declared the entire election process in the impugned constituencies a nullity. Their argument was that once the electorate had exercised their rights to vote their representatives under Article 78(1), the elected members had the right to stay in parliament until they vacated their seats on any grounds named under Article 83 of the Constitution. They relied on the case of Hon. Theodore Ssekikubo & 4 Others vs. Attorney General & 4 Others, SCCA No. 1 of 2005. They thus prayed the court to allow this ground.

In response, Mr. Dan Wandera Oga1o, learned counsel for the respondent opposed this ground and supported the decision of the Constitutional Court. He contended that the Constitutional Court correctly found that Article 63(21 of the Constitution did not create vacancies in parliament and argued against the appellants'argument that the creation of constituencies automatically resulted into parliamentary seats falling vacant that would warrant for an election. He argued against counsel for the appellants' submissions that sections | , 3, 4, 5 and a5( 1) (a) (i) of the Loca-l Government Act should have been employed by the Constitutional Court to come to the conclusion that the word county as used in Article 63(2) is sJmonyrnous with the word municipality. He submitted that the provisions of an act of parliament are not a known tool or rule of

interpretation of the Constitution. He relied on the case of David Wesley Tusingwire vs. Attorney General, Const. Appeal No. 4 of 2O16 that sets out the rules of constitutional interpretation to support his argument. He contended that under Article 63(2) of the Constitution, the role of parliament is restricted to the approval of counties and that the next stage therefrom that involves the demarcation of the constituencies is by the Electoral Commission which also shoulders the duty to ensure that each county has at least one member of parliament. It is upon this that he argued that Article 63(1) and (2) of the Constitution do not have the effect of creating vacancies in parliament.

Regarding counsel for the appellants' submission that demarcation and prescription of constituencies by parliament automatically created vacancies in parliament, counsel for the respondent contended that this argument was self- defeating. He argued that the appellants having failed to prove to court that there were any demarcations of constituencies made in the impugned municipalities pursuant to Article 63(2) of the Constitution, could not argue that any vacancies were created. He also submitted that the appellants failed to prove to court that the Clerk to Parliament at any one point wrote to the Electoral Commission informing it of any vacancies created and requiring it to hold elections in the impugned constituencies as required under Article 81(2).

He argued further that the appellants having failed to show that vacancies can be created outside the provisions of Article 83(1) of the

Constitution, the Constitutiona-l Court could not be faulted for holding otherwise.

Regarding counsel for the appellants'reliance on Article 78(1) of the Constitution as being authority for holding midterm elections, counsel for the respondent argued that this reliance was misconceived since the provisions of that Article set out the various categories of members of parliament such as women and not the concept of midterm elections as was wrongly argued by counsel for the appellants. He submitted that it is articles 61(2) and 8i(2) that offer constitutiona-l backing for the holding of elections in Uganda.

On jurisdiction, counsel for the respondent argued against counsel for the appellants'submission that the Constitutional Court usurped the jurisdiction of the High Court when it declared the elections held in the impugned constituencies a nullity. It was counsel's submission that the lower court was never constituted to determine the question of whether the members of parliament in the impugned constituencies were validly elected and that if that were the case the High Court would then be proceeding under Article 86(1) of the Constitution. He submitted further that the petition was filed long before the nominations and elections were held and that one of the reliefs sought in the petition was for a permanent injunction restraining the Electoral Commission from holding elections in the municipalities.

He prayed Court to disallow this ground.

In their submissions in rejoinder, counsel for the appellants reiterated their earlier submissions and prayers.

## Resolution.

Counsel for the appellants faulted the Constitutional Court for finding that prescription of constituencies was law{ul but that it did not necessarily create vacancies in the said constituencies requiring the holding of elections by the Electoral Commission. The respondent on the other hand supported the court's finding. The Constitutional Court in reaching this finding stated as follows:

"There is no evidence anSrwhere that parliament created the municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido as constituencies per se to be represented by members of Parliament. The resolution of Parliament dated 96 August 2O16 does not on the face of the written word create municipalities or constituencies named as the above mentioned municipalities. Even if Parliament mentioned municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido as constituencies in the resolution according to an attached list annexed to the petition, it did not amount to demarcation of the constituencies and the second respondent would still have a duty to demarcate the boundaries of the named constituencies under Article 63(2) of the Constitution. Prescription of the Constituencies is not the same thing as demarcation of the boundaries of the constituencies. The two roles under Article 63(1) for prescription of constituencies and Article 63(2) for demarcation of boundaries

## for purposes ofprescribed constituencies can be and have to be read in harmony."

The Constitutional Court's decision is a clear indication that the court was alive to the provisions of Article 63. The process of creation of new constituencies is stipulated therein. Firstly, clause 1 enables parliament to prescribe the number of constituencies Uganda shall be divided into. Clause 2 stipulates the next step that would involve the Electoral Commission demarcating constituencies and the considerations that each county as prescribed by parliament has at least one member of parliament and that no constituency falls within more than one county. There is no evidence on record to show that the Electoral Commission ever undertook to demarcate constituencies based on the resolution of Parliament dated 9th August, 2016. This therefore meant that the process of creation of the constituencies as prescribed in the Constitution was never completed. In view of this, the Electoral Commission could not be seen to organize elections in purported constituencies whose demarcation and creation had not been completed in law.

Also the lawful process of filling vacancies that fall vacant in Parliament under Article 81(2) is supposed to be initiated by the Clerk to Parliament who is charged with the obligation of writing to the Electoral Commission notifying it within ten days after the vacancy occurred lo organize a by election within sixty days after the vacancy occurred. There is no evidence on record to show that the Clerk to Parliament ever wrote to the Electoral Commission informing it of any

vacancies in parliament requiring filing. This is further confirmation that indeed no vacancies were created in Parliament requiring filling.

On the issue of constitutional creation of vacancies in Parliament, the Constitution under Article 83 (1) is very elaborate about when a seat falls vacant.

I will reproduce part of the provision for emphasis. It states inter alia that:

"A member of parliament shall aacate his or her seat in parliament-

(a)If lrc or she resigns his or lrcr office in uriting signed by him or her and addressed to the speaker;

(b)..............'

The word vacancy as was used by the appellants in their submissions comes from the word "vacate". This one is incorporated in the wording of Article 83(1) as noted above. According to Black's Law Dictionary (supra)at page 4807 the term "vacale" means to nullify, cancel, make void or invalidate. This presupposes a thing that was already in existence. Indeed, the provision states that a member of parliament sha-ll vacate his or her seat in parliament. This presupposes a seat in an already existing constituency, a member of parliament that was validly elected therein, and then a reason that inva-lidates the occupancy of the said seat by that member of parliament. From the outset, a seat that was not in existence cannot be said to fall vacant as the appellants would like Court to find. This means that the mere

prescription by parliament that involves an increment in the number of constituencies does nol ipso facfo create new vacancies.

The Constitutiona-l Court in determining this issue quoted the provisions of Article 83(1) and stated inter aliathat:

"Under Article 83 quoted above, there is no basis for any member of parliament to vacate his or her seat upon any demarcation of any constituency into one or more constituencies. Similarly, there is no basis for any member of parliament to vacate his or her seat or to cease representing the electorate upon alteration of boundaries. We shall further note that any demarcation or alteration ofboundaries can only take effect in the next general elections unless the seat is vacated earlier. Furthermore, <sup>a</sup> member of Parliament may also vacate his or her seat upon the exercise of the power of the right to recall by the electorate."

I agree with the above dicta. Having a member of parliament vacate his/her seat in parliament is not the same as creating a constituency that did not exist at the time of the election. In any case, the facts at hand do not even show that the process of creation of the new constituencies was completed. Be that as it may, the same position would be maintained even if the creation process had been completed. The reasoning behind this hnding was properly put across in the Constitutional Court decision at page 64 where Madrama JA/JJCC stated as follows: "... This is because, before a constituency is split into two or more constituencies, a Member of Parliament is elected for the whole region which is subsequently split into two or more constituencies. So long as the Member of Parliament remains in Parliament, he is under obligation to represent all the people in the constituency which elected him or her into Parliament before it was split into two or more constituencies. It is therefore, erroneous to suggest that any vacancy can arise out of re-demarcation of constituencies after elections have been held and an MP elected to represent the constituency before it was split. ..."

The appellants'argument that the electorate lrom the newly created constituencies were disenfranchised when the Constitutional Court found that the elections held were unconstitutional and therefore null and void is untenable.

The appellants faulted the Constitutional Court for usurping the power of the High Court when it declared the entire electoral process a nullity. They argued that the jurisdiction to inquire into the validity of the election of a Member of Parliament is the preserve of the High Court. This argument too is untenable.

Whereas counsel for appellants rightly submitted that ttre jurisdiction to determine the question of whether a person had been validly elected a member of parliament or that a seat in parliament has become vacant lies under Article 86(1), they erroneously argued that the issue for the Constitutional Court's determination was about

the validity of the elections in the six impugned constituencies. As a matter of fact, the issue that was determined by the court was whether or not the prescription of additional constituencies by parliament created vacancies in parliament that would warrant the holding of elections by the Electoral Commission. The petition was filed before the said elections were held with one of the remedies sought being a permanent injunction barring the holding of elections therein. The nullification of the said election was a mere consequence of the declaration that the constituencies were unconstitutionally turned into vacancies. As such the appellants'reliance on the case of Theodore Ssekikubo & 4 others vs. Attorney General & 4 others (supra) is unfounded.

This ground must therefore, fail.

## Ground 2

It was the case for the appellants that the learned Justices of the Constitutional Court erred in law when they found that the six a-{Iected MPs had no right to be heard by the court and yet their rights as Members of Parliament of the impugned constituencies were being affected by the court's decision.

It was the case for the Attorney General that the right to a fair hearing (audi alteram parteml is a fundamental right guaranteed under Articie 28 and that under Article 44(1) it cannot be derogated from. He relied also on H. W. R Wade & C. F Forth, Administrative Law 5, Oxford University Press, 2O14 Edition. at page 4O2 to support this

argument. He further relied on this Court's decision in Mpungu & Sons Transporters Ltd vs. Attorney & Anor, SCCA No. 17 of2OOl, Hamid vs. Roko Construction, SCCA No. 1 of 20 13, Crane Bank Ltd vs. Nipun Narottam Bhatia, SCCA No. 02 of2Ol4 and what he referred to as a persuasive decision of the Constitutional Court in Caroline Turyatemba & 4 Others vs. Attorney General, Const. Petition No. 15 of 2006.

He submitted that the failure of the court to grant the affected MPs a right to a fair hearing rendered the decision of the Constitutional Court an illegality which this court should not sanction. He relied on the case of Makula International Ltd vs. His Eminence Cardinal Nsubuga & Anor, ll982l HCB 15 to support his argument. He prayed that the Court finds that the decision of the Constitutional Court amounted to an illegality and therefore was null and void.

These arguments were reiterated by counsel for the Electoral Commission.

In response, Counsel for the respondent opposed this ground arguing that the ground lacked merit. He supported the decision of the Constitutional Court that was to the effect that the affected MPs had no right to be heard and therefore their right to be heard as guaranteed under Article 28 (1)was not derogated. He sought to rely on one of this Court's decisions that was relied on by the appellants Mpungu Transporters vs. Attorney General & Anor (supra) to support his argument. He contended that whereas it is true that the rule of audi alteram parlem ought to be adhered to, the person

alleging that the right to be heard was derogated ought to prove that the right to be heard existed in the first place, that the decision arrived at deprived him of that right to be heard and that as a consequence the person suffered damage from the deprivation. He contended further that the appellants failed to prove the three requirements that would be necessar5r to establish the cause of action.

He submitted that the Constitutional Court rightly found that the right to be heard by the affected MPs could only be established if the petition concerned the election of the six Members of Parliament on 27tn July,2018 which was not the case. He submitted further that the petition was filed on 18th May, 2018, a month before the actual election of the six affected MPs, challenging that creation of the impugned constituencies and seeking an injunction to restrain the Electoral Commission from conducting elections therein. He contended that the nullification of the elections in the six impugned constituencies was simply a consequence of the Constitutional Court's finding that the holding of the elections was unconstitutional and as such did not give rise to a right to be heard. Counsel thus prayed this Court to disallow this ground and to uphold the Constitutional Court's decision that the affected MPs had no right to be heard.

Counsel for the appellants reiterated their earlier submissions in their rejoinder.

## Resolution:

The right to be heard is a fundamental right that sits at the centre of all matters in the administration ofjustice. It is based on the cardinal rule of audi alteram partem which is translated to mean "hear the other side". In our Constitution, it is guaranteed under Article 28(1) which provides as follows:

## "In the determination of civtl rights and. obligations or ang criminal charge, a. person sholl be entitled to a fair, speedg and public hearing before an independent court or tribunal estoblished bg law."

This right falls under the non derogable rights as provided for under Article 44(cl of the Constitution.

Counsel for the appellants argued that the affected MPs were condemned unheard and that for that reason the decision of the lower court was rendered null and void. They relied on several decisions of this Court especially Mpungu & Sons Transporters Ltd vs. Attorney General & Anor (supra) to support their argument. The respondent opposed this argument while relying on the same decision.

I wish to quote the relevant part of the aforesaid decision for ease of reference. While commenting on the rule of audi alteram partem in his lead judgment, Katureebe J. S. C (as he then was) had this to say:

"I agree that the audi alteram partem ntle is a cardinal ntle in our adminlstratiue low qnd should be qdhered to. Simplg put the ntle is that one rnust hear the other sid.e. It ls derlved from

the prlnclple of no,turo'l Jttstice thqt no man should fu condemned unheard. (See Black's Ldut Dlctionary) 6th Editlon. HoweueL one would hqoe to proae that one hdd a rtsht ta be heord which had been breached., qnd thqt the decision orrioed at the admtnlstratiae authori ho,d either de rlued him o his riqhts or unfairlu impinqed on those riohts thereba causino d.amqge to the individuql concerned.. Most cases inaohting the rtghtto be heard haae dealt utith sifi;o,tions where o person l;,l,o,s being deprtued. of his propertg or liuelihood. But eo.ch case hcs to be looked at on its oun merits." (Emphasis mine)

The import of this decision is that whereas the audl alteram par-tem rule has to be adhered to, the right to be heard does not exist in a vacuum. Suffice to say that the proof of the right to be heard is rooted in the concept of cause of action. One ought to prove that the right to be heard existed, that it was breached, that the decision arrived at deprived him or her of his rights which had the consequence of causing damage to the person concerned.

The application of the aforementioned principles was illustrated in the facts of that case. The appellant, Mpungu & Sons Transporters Ltd, was a bus operator who had been granted a licence by the Transporting Board to operate along Masindi - Kafu-Nakasongola - Kampala route. There was a second licensee called Super Coach operating along that road. The Transport Board issued a third licence to the 2"d respondent Kambe Coffee Factory Ltd on the same route which the appellant sought to challenge on ground that the appellant

should have been accorded a right to be heard before the third licence that was granted to the 2".1 respondent.

The Court found that the audi alteram partem rule had not been violated because section 90 of the Traffic and Road Safety Act of 1970 as amended by The Trafhc & Road Safety Act (Amendment) Decree <sup>18</sup>173 which the appellant relied on to support his case did not provide for the right to be heard to any licensee already operating a route before another operator is granted a licence. The appellant had also failed to prove that the Transport Board's decision was made in order to deprive it of its licence.

The facts ofMpungu & Sons Transporters Ltd vs. Attorney General & Anor (supra) case are on all fours with the facts in the instant case. This was clearly illustrated in the manner in which Madrama JCC, in his lead judgment determined this issue. He stated inter alialhal:

uThe rlght to a hearing and a fair one at tho,t ls enshrlned in Afilcle 28(1) of the Constlfr.ttion qnd co,nnot be derogated from uflder ortlcle a @) of the Constltutlon tf an order of nullificotion is to be mode. Ang nullification of the seat of a Member of Parliamcnt without otfording the MP affected a right to be heard would in theory derogate from the right to afair hearlng contrary to artlcles 2a(1) and 44(c) of the Constlhttlon. Such c rlght con onlg be crsserted if there was a lawful aacancu ln on office of MP that had been contested for. Secondlg, the rtght ts o.aqilable in the process of challenging a person uho hcd been elected in an offfce erutlsaged ln the Constlttttion.

Where the ofJice of MP does not exist, then it is sufJicient for this court to find that the elections conducted. in the municipalities utere premahtre, null dnd aoid and for a nonexistent aacancg."

I entirely agree with the decision of the Constitutional Court regarding the affected MPs right to a hearing, which, having found that there were no vacant constituencies to be filled, and that the decision of the court was never meant to deprive the affected members of parliament in the six constituencies, the court rightly held that the rule of audi qlteram partem was not violated.

Therefore, this ground ought to and fails.

## Ground 3.

t

It was counsel for the appellants'case that the Honourable Justices of the Constitutiona,l Court erred in law and in fact when they held that the respondent shall be paid half the taxed costs. It was their argument that since the creation of the six municipalities was done pursuant to Article 63(2) of the Constitution and was based on a resolution of Parliament, the respondent should not be entitled to any costs. It is important to note that the appellants'submissions on this issue were based on the belief that grounds 1 and 2 would succeed and that the Court would allow their appeals. They premised their submissions on section 27 of lhe Civil Procedure Act which is to the effect that costs follow the event. They prayed that the court allows this ground.

The respondent opposed this ground and supported the finding of the Constitutional Court. Counsel for the respondent submitted that having demonstrated to the Court that the appellants' grounds of appeal regarding the unlawful creation of vacancies in the impugned constituencies, the violation of the *audi alteram partem* Rule and the alleged misinterpretation of Article $63(2)$ of the Constitution were devoid of merit, this ground too should be disallowed.

The law regarding the award of costs is well stipulated. Section 27 of the Civil Procedure Act is to the effect that costs follow the event. The Constitutional Court found that the respondent (then petitioner) having succeeded in part of the petition was entitled to be paid half of the costs taxed in that court. I find no justification to alter that decision.

Therefore, ground 3 also must fail.

In the result, I would make the following orders:

- 1. The appeal is dismissed with costs to the respondent. - 2. The respondent is awarded half the taxed costs in the Court below. - 3. The cross appeal is dismissed with costs to the respondent.

It is so ordered.

Dated at Kampala this..... $\overbrace{0\ldots\ldots}$ day of ...... $\overbrace{1\ldots\ldots}$ ax $\overbrace{202\lambda}$ .

JUSTICE OF THE SUPREME COURT # THE REPUBTIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPATA

CORAM: KISAAKYE, ARACH-AMOKO, MWONDHA, MUGAMBA, MUHANGUZI, TUHAISE, CHIBITA, JJ,SC

# CONSOLIDATED CONSTITUTIONAL APPEATS NOS. 02 & 03 OF 2O2O

# 1. ATTORNEY GENERAT

2. ETECTORAL COMMISSION APPELLANTS

AND

- 1. HON. BASALIRWA ASUMAN - 2. HON. DR. TUMWESIFYE ETIODA - 3. HON. OCAN PATRICK - 4. HON. LOKII PETER ABRAHAMS - 5. HON. RWABURINDORE BISHANGA TARSIS - 6. HON. HASHIM SUtAIMAN.. CROSS APPELLANTS

VERSUS

EDDIE KWIZERA RESPONDENT

(Appeol orising from the decision, decree and orders of the Constitutionol Court ot Kampolo (Owiny-Dollo, DCJ, Kokuru, Egondo-Ntende, Cheborion & Madromo, JI. CC) delivered on the 27h December 2079 in Constitutional Petition No. 20 of 2018)

# JUDGMENT OF MUHANGUZI JSC

<sup>I</sup>have had the benefit of reading in draft the judgment of my learned brother Hon. Justice Mike Chibita, JSC.

lagree with the conclusion thatthis appeal mustfail with costs in this court and half the taxed costs in the court below.

Dated at Kampala this k, day of .... 202D^

Ezekiel Muhanguzi JUSTICE OF THE SUPREME COURT

I

#### THE REPUBLIC OF UGANDA

#### IN THE SUPRXME COURT OF UGANDA

#### AT KAMPALA

Coram: Kisaakye, Arach Amoko, Mwondha, Mugamba, Muhanguzi, Tuhaise and Chibita JJSSC

#### Consolidated Constitutional Appeal N0s. 02 and 03 of 2020

(Arising from Constitutional Petition N0. 20 of 2018)

Attomey General -

APPELLANTS

Electoral Commission'

#### ANI)

I Hon. Basalirwa Asuman

') Hon. Dr. 'l'umwesigye Elioda

3 Hon. Ocan Patrick

,

i

CROSS APPELLANTS

- 4 Hon. Lokii Peter Abrahama - 5 Hon. Rwaburindori Bishanga Tarsis - 6 Hon. Hashim Sulaiman

Versus

Eddie Kwizera RESPONDENT

#

(Arising from the decision, Decree and orders of the Constitutional Court of Uganda at Kampala of (Alfonse C, Owiny Dollo DCJ, Keneth Kakuru, FMS, Egonda Ntende, Bartshaki Cheburion, Christopher Madrama JJA) delivered at Kampala dated 27th December 2019 in Constitutional Petition N0.20 of 2018)

#### Judsment of Mwondha JSC

I have had the benefit of reading in draft the judgment of my leamed brother Hon. Justice Mike Chibita JSC. I concur that thc appeal be dismissed with costs in this court and half the taxed costs in the court below.

Dated at Kampala this....................................

Tilmer Dee<br>Mwondha

$\mathbb{C}$

$\frac{1}{\sqrt{2}}$

$\cdot \quad \cdot$ $\mathbf{L}$

Justice of the Supreme Court

# THE REPURLIC OF UGANDA IN THE SUPREME COURT OF UGANDA

### **AT KAMPALA**

(CORAM: Kisaakye, Arach-Amoko, Mwondha, Mugamba, Muhanguzi, Tuhaise and Chibita JJ. SC)

#### **CONSOLIDATED CONSTITUTIONAL APPEAL NOS, O2 & 03 OF 2020**

[Arising from Constitutional Petition No.20 of 2018]


#### **VERSUS**

EDDIE KWIZERA::::::::::::::::::::::::::::::::::::

{Appeal from the decision, decree and orders of the Constitutional Court at Kampala (Alfonse C. Owiny-Dollo, DCJ; Kenneth Kakuru, F. M. S. Engonda Ntende, Barishaki Cheborion, Christopher Madrama, JJA). Dated 27<sup>th</sup>December, 2019 in Constitutional *Petition No. 20 of 2018}*

## JUDGMENT OF M. S. ARACH-AMOKO, JSC

I have had the benefit of reading in advance the draft Judgment prepared by my learned brother, Hon. Justice Chibita, JSC and I concur with his reasoning and conclusion that this appeal should be dismissed with costs in this Court and half the taxed costs in the Court below.

Dated at Kampala this .................................... $\n *meanif*......202D\n$

M. S. ARACH-AMOKO JUSTICE OF THE SUPREME COURT

# **REPUBLIC OF UGANDA**

# IN THE SUPREME COURT OF UGANDA

## AT KAMPALA

#### CORAM: KISAAKYE; ARACH-AMOKO; MWONDHA; MUGAMBA; MUHANGUZI; TUHAISE; CHIBITA; JJ. S. C

CONSOLIDATED CONSTITUTIONAL APPEALS NOS: 02 & 03 OF 2020

(Arising from Constitutional Petition No. 20 of 2018)

ATTORNEY GENERAL .................................... ELECTORAL COMMISSION ....................................

AND

HON. BASALIRWA ASUMAN HON. DR. TUMWESIGYE ELIODA HON. OCAN PATRICK 3. HON. LOKII PETER ABRAHAMS **::::CROSS-APPELLANTS** 4. HON. RWABURINDORE BISHANGA $5.$ **TARSIS** 6. HON. HASHIM SULAIMAN **VS**

$1.$

$2.$

# EDDIE KWIZERA :::::::::::::::::::::::::::::::::::: JUDGMENT OF PAUL MUGAMBA, JSC

I have had the benefit of reading in draft the judgment of my learned brother Justice Mike Chibita, JSC. I agree with the reasoning, conclusion and orders proposed.

Dated at Kampala this....................................

Hon. Justice Paul Mugamba

JUSTICE OF THE SUPREME COURT

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA **AT KAMPALA**

#### (CORAM: KISAAKYE, ARACH-AMOKO, MWONDHA, MUGAMBA, **MUHANGUZI, TUHAISE, CHIBITA JJ. SC.)**

CONSOLIDATED CONSTITUTIONAL APPEALS NOS. 02 &03 OF 2020

### [Arising from Constitutional Petition No.20 of 2018]

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

2. ELECTORAL COMMISSION::::::::::::::::::::::::::::::::::

#### AND

- 1. HON. BASALIRWA ASUMAN - 2. HON . DR. TUMWESIGYE ELIODA - 3. HON. OCAN PATRICK - 4. HON. LOKII PETER ABRAHAMS - 5. HON. RWABURINDORE BISHANGA TARSIS - 6. HON. HASHIM SUSLAIMAN

#### **VS**

<table>

EDDIE KWIZERA ::::::::::::::::::::::::::::::::::::

[Arising from the Decision, Decree and Orders of the Constitutional Court of Uganda at Kampala (Alfonse C. Owiny-Dollo, DCJ; Kenneth Kakuru, F. M. S. Engonda Ntende, Barishaki Cheborion, Christopher Madrama, JJA) delivered at Kamapala on 27<sup>th</sup> December, 2019, in Constitutional Pettion No. 20 of 2018]

# **JUDGMENT OF TUHAISE, JSC.**

**ASN**

**CROSS –APPELLANTS**

I have had the benefit of reading the lead judgment of Hon Justice Chibita, JSC.

I agree with the decision and conclusion that the appeal be dismissed with costs in this court and half the taxed costs in the Court below.

Dated at Kampala this ------------------------------------

$\mathcal{L}^{\mathcal{L}}$

$\mathcal{A}$

MAT Percy Night Tuhaise JUSTICE OF THE SUPREME COURT