Mugisha and Another v Attorney General (Consitutional Petition 19 of 2017) [2023] UGCC 122 (27 January 2023)

Full Case Text

### 5 THE REPUBLIC OF UGANDA

### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Richard Buteera - DCJ, Sfephen Musota, Muzamiru trl. Kbeedi, lrene Monica K. lrlugenyi, JJCC) f,fiutyagonja \ \ &

### CONSTITUTIONAL PETITION NO. 19 OF 2017

# 10 1. MUGISHA ROBERT I

2. BWENGYE DEUSDEDIT I ERS

VERSUS

o ATTORNEY GENERAL RESPONDENT

### JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI. JCC

# L5 INIEOpUCTION

Mr, Robert Mugisha and [v1r. Deusdedit Bwengye (hereafter referred to as "the Petitioners") brought this Petition under Article 137(1), (3Xa) & (b), and (4) of the Constitution of the Republic of Uganda, 1995 and the Constitutional Court (Petitions and References) Rules, S.l No. 91 of 2005 challenging the constitutionality of certain acts of the President of the Republic of Uganda and Parliament namely: the appointment of General Edward Katumba Wamala to the office of Minister of State for Works on 09th January 2017 while he was still a serving officer of the Uganda Peoples Defence Forces (UPDF); the appointment of the Kyabazinga of Busoga, William Wilberforce Kadhumbula Nadiope Gabula lV on 15tn February 2017 as the President's Special Envoy, and the statement allegedly made by the President on 26th January 2017 to the effect that "/ am not your servant..." .

The Petitioners also challenge the constitutionality of Sections 38(2) and 53 of the UPDF Act, 2005 together with the Oath of Allegiance set out in the Fifth Schedule of the UPDF Act. They seek declarations that: -

20 a

- 30 a) The appointment, on 09tn January 2017, by the President, of General Edward Katumba Wamala, a serving UPDF officer who had neither resigned nor retired from the UPDF, to the Office of the State Minister for Works is inconsistent with and in contravention of Articles 98(3), 205(2),208(2) and 257(1)(s) of the Constitution of the Republic of Uganda and, thus, null and void. - 35

b) The vetting and/or subsequent approval of General Edward Katumba Wamala, a serving UPDF officer, as the l\4inister of State for Works by Parliament's Committee on Appointments is inconsistent with, and in contravention of Articles 2,79(3),98(3), 205(2), 208 (2) & (4), and 257(1)(s) of the Constitution of the Republic of Uganda.

- c) The appointment by the President and/or subsequent approval by Parliament of General Katumba Wamala as a State Minister for Works while still a serving UPDF Officer, subjects him to a conflict of interest which may compromise his office as a Minister, and is inconsistent with and in contravention of Articles 113(4) and 11a(5) of the Constitution of the Republic of Uganda. 40 - d) The vetting and/or subsequent approval of General Edward Katumba Wamala, a serving UPDF officer, as the [vlinister of State for Works by Parliament's Committee on Appointments will set a dangerous precedent that serving UPDF officers and militants can seek political office, including the Office of the President of the Republic of Uganda which will propel the Republic of Uganda toward a military state, is inconsistent with, and in contravention of Articles 3(1)and 208(2) of the Constitution of the Republic of Uganda. - e) Section 53 of the UPDF Act, 2005 and specifically the Oath of Allegiance provided under its Fifth Schedule, is inconsistent with and in contravention of Objective XXVI of the National Objectives and Directive Principles of State Policy, and Articles 1(3), 2(1) & (2), 5(1), 98(1), and 208(2) & (a) of the Constitution of the Republic of Uganda - 0 Under the current constitutional framework, the appointment by the presiOent of any serving UPDF officer or militant who has neither resigned nor retired from the UPDF, as

- 55 Minister, is inconsistent with and in contravention of Articles 98(3), 208(2) & (4), 205(2) and 257(1)(s) of the Constitution of the Republic of Uganda. - g) Under the current constitutional framework, the approval by Parliament of any serving UPDF officer and militant who has neither resigned nor retired from the UPDF, as Minister, is inconsistent with, and in contravention of Objective XXVI of the National Objectives and Directives Principle of State Policy, and Articles 2(1), 79(3), 205(2),208(2)&(4) and 257(1)(S) of the Constitution of the Republic of Uganda. - h) Section 38(2) of the UPDF Act, 2005 is inconsistent with and in contravention of Article 205(2),208(2), and 257(1)(s) of the Constitution of the Republic of Uganda. - i) Under the current constitutional framework, the President, specifically President Yoweri Kaguta l/useveni, is a servant of the people of Uganda.

The Petitioners also prayed for the following orders:

- a) Permanently restraining or injuncting General Edward Katumba Wamala from continuing to occupy the office of State Minister for Works until he has resigned or retired from the UPDF. - 70 b) General Edward Katumba Wamala immediately vacates the office of State lVlinister for Works. - c) Permanently restraining or injuncting the Kyabazinga of Busoga, William Wilberforce Kadhumbula Nadiope Gabula lV, from continuing to occupy the office of the President's Special Envoy. - d) The Kyabazinga of Busoga, William Wilberforce Kadhumbula Nadiope Gabula lV, immediately vacates the office of the President's Special Envoy. 75 - e) Prohibiting Parliament from further approving the appointment of any serving officer or militant of the UPDF as a political or administrative head of any ministry in Uganda before he has retired or resigned from the UPDF.

a 65

0 The costs of the Petition. 80

g) Any other reliefs as this Honourable Court may deem fit.

The Petition is supported by the affidavits of the Petitioners dated the 24tn May 2017 whose contents are more or less identical.

The respondent filed an Answer to the Petition and Supporting Affidavit deponed upon by IVlr. Jimmy Oburu Odoi by which he denied all the allegations contained in the Petition. The respondent also contended that the appointment of General Katumba Wamala on 09tn January 2017 as a Minister of State for Works having lapsed in December 2019, its challenge had been overtaken by events and rendered moot and academic. 8s

The respondent further contended that the statement attributed to the President namely, "l am not your servant..." is not actionable in so far as it did not amount to a directive or policy decision having legal effect. Furthermore, the statement does not raise any issue for constitutional interpretation. o 90

The respondent subsequently filed three Supplementary Affidavits in Support of the Answer to the Petition respectively deponed upon by the Clerk to the Parliament of Uganda, Hon. Adolf IVlwesige Kassajja, the Secretary to the Office of the President, Hajji Yunus Kakande bnd tMs. Goretti Arinaitwe, a Senior State Attorney in the Attorney General's Chambers. 95

# O REPRESENTATIONS

At the hearing of the Petition, the Petitioners appeared pro se, while Ms. Claire Kokunda, a Senior State Attorney in the Attorney General's Chambers, appeared for the Respondent. The parties proceeded by way of written submissions as directed by Court. This judgment has therefore been prepared largely on the basis of the Written Submissions.

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## ISSUES FOR RESOLUTION

- 105 From their respective submissions, the Petitioners and Respondent have set out the following issues for determination by this court: - 1. Whether the act of the President in appointing Gen. Edward Katumba Wamala, a serving UPDF officer, to the office of the State Minister for Works in the Government of Uganda is inconsistent with and in contravention of Articles 113(1), 113(4), 114(5), 78(1)(c), 80(1X2), 205(2),257(1) and 208(2) of the Constitution of the Republic of Uganda and Section 99 of the UPDF Act, 2005. - 2. Whether the vetting and approval of General Katumba Wamala, a serving UPDF officer, as a State Minister for Works by Parliament's Committee on Appointments was inconsistent with and in contravention of Articles 2 and 79(3) of the 1995 Constitution of the Republic of Uganda. - 3. Whether Section 38(2) of the UPDF Act, 2005 in so far as it permits officers and militants of the UPDF to be attached or seconded to any Government department or Agency, is inconsistent with and in contravention of Articles 205(2), 208(2) and 257(1Xs) of 1995 Constitution of the Republic of Uganda. - L20 o 4, Whether Section 53 of the UPDF Act, 2005 in so far as it requires officers and militants of the UPDF to take the Oath of Allegiance as specified in the Fifth Schedule of the Act, is inconsistent with and in contravention of Objective XXVI of the National Objectives and Directive Principles of State Policy, and Articles 1(3),2(1) & (2),5(1),98(1), and 208(2) & (a) of the Constitution of the Republic of Uganda. - L25 5. Whether the petitioners' challenge of the appointment of the Kyabazinga of Busoga William Wilberforce Kadhumbula Nadiope Gabula lV as Special Envoy to the President, is moot and academic.

- 6. Whether the petitioners' challenge of a statement attributed to the President to the effect that he is not a servant of the people of Uganda is frivolous and vexatious and not a matter for constitutional interpretation. - 7. Whether the petitioners are entitled to the declaration and orders sought.

I will analyze and resolve the issues in the order set out by the parties.

### ISSUE 1:

L45

Whether the act of the President in appointing Gen. Edward Katumba Wamala, a serving UPDF offrcer, to the office of the Minister of Stafe forWorks in the Government of Uganda is inconsistenf with and in contravention of Artictes 113(1), 119(4), 114(5), 78(1)(c), 80(1)(2), 205(2), 257(1) and 208(2) of the Constitution of the Republic of Uganda and Secfion 99 of the UPDF Act, 2005. 135

### The Petitioner's submissions

L4o lt was the submission of the Petitioners that:

- a) They agreed with the respondent that the President of the Republic of Uganda has the right to appoint a Member of Parliament as a state minister. That the aforementioned notwithstanding, the need to read the Constitution as a whole, requires this Court to cast its net wide for both constitutional provisions which take into consideration the unique character of persons who may at one time occupy the office of a Member of Parliament and constitutional ju risprudence. - b) The appointment of General Katumba Wamala as a State Minister for Works subjects him to conflict of interest which may compromise his office as a Minister and is thus inconsistent and in contravention of Articles 113(4) and 114(5) of the Constitution. ' - 150 c) The requirement that UPDF offlcers should be non-partisan is for avoidance of a recurrence of the past where the national army was an extension of the political party in

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power which itself was an extension of the Government of the day especially the fusion between the State, Government, Uganda People's Congress (UPC).

- d) Where the President who may or may not be a member of a political party appoints a UPDF officer as a Minister whom this Court has already referred to as a political agent of the President, it's clear that the UPDF officer will be a political agent of the President who is thus mandated to execute the instructions of her or his principal which do not'exclude representing the President at a political event such as a fundraising ceremony organized by the political party or organization of which the President is a member. There's no doubt that in such an instance, the UPDF officer will be partisan contrary to the provisions of Article 208(2) of the Constitution especially since he is obliged as a soldier to obey the President's orders as the Commander-in-Chief of the armed forces. - e) ln Uganda, the Government aspires to implement the National Resistance lMovement (NRM) Manifesto and so, there's a clear fusion between the two in both fgrm and substance. That consequently, a Minister of Government is so much as important facet in that fusion that it's not possible to desist from labeling her or him a Minister in the NRIM Government or more suitably, a Minister of the NRM. - 0 Although UPDF officers are constitutionally allowed to be Members of Parliament, it cannot be said that they are at the same time allowed to be appointed as Ministers since there's a glaring contradiction between Articles 113(1) and 208(2) and therefore, Parliament could not have intended Article 208(2) to apply to Article 113(1) since Ministers cannot afford to be non-partisan by virtue of their political office. That this means that Article 2OB(2) negates the application of Article 113(1) to UPDF officers and militants. - g) Consequently, it can be deduced that where one is both a UPDF officer and a Jt/inister, then a conflict of interest is bound to arise in as far as to whom/what s/he owes allegiance first is concerned, L75

170 o

### Respondent's Reply

18s

195 o

In response, the Attorney General submitted that

- 180 a) The Cabinet is created/established by the Constitution. Cabinet Ministers are appointed by the President but with the approval of Parliament from among Members of Parliament or persons qualified to be elected Members of Parliament. - b) There is no requirement for a nominee for a Ministerial position to belong to a political party or organization or not be a Member of the Army. That an army officer who is also a Member of Parliament is qualified for appointment as a Minister in the Government of Uganda. - c) Any serving UPDF office who is either a Member of Parliament representing the UPDF, or who meets the constitutional criteria to become a Member of Parliament, is duly qualified to be appointed as a Minister under Article 1 13(1). That accordingly, the appointment of such a qualified serving UPDF officer as a Jvlinister is consistent with Articles 113(1), 78(1Xc ), and 80(1)and (2) of the Constitution.. - d) General Katumba Wamala, being a serving Member of Parliament representing the UPDF as provided under Article 7B(1)(c ), duly met the criteria to be appointed as a Minister under Article 113(1) and therefore his appointment as State Minister for Works was consistent with Articles 11 3(1 ), 78( 1 )(c) and 80( 1 ) and (2) of the Constitution. - e) That, the government and political organization/party are not synonymous. That the appointment of a serving UPDF officer to serve in the Government as a Minister does not equate to such officers becoming partisan. Thus, the appointment of serving UPDF officers as a Minister is NOT inconsistent with Article 208(2) of the Constitution as alleged.

#### Resolution of issue 1 200

I note that in response to the averments in the Petition challenging the constitutionality of the appointment of General Katumba Wamala as the Minister of State for Works, the Respondent

Page 8 of 25 20s

2L0 stated in paragraph 4 his Answer to the Petition that challenging the appointment had become moot and academic following the lapse of the appointment in December 2019. However, as this point of law was not subsequently pursued by any of the parties in their Written Submissions, I inferred such an approach to mean that the point of law was abandoned, and rightly so in my opinion. The constitutionality of the appointment of a serving army officer as a lVlinister of State is a question of great public importance in Uganda which remained alive even after the{apse of General Katumba Wamala's appointment in December 2019, given the very high possibility of other similar appointments being made even after December 2019.!n the circumstances, the question fell within the ambit of the doctrine of "continuing controversf' which is one of the exceptions to the general principle that Courts of law should not adjudicate on matters which are academic or moot. See: Hon. Ssewungu Joseph Vs Attorney General, Constitutional Petition No.40 of 2013 (Unreported)

2L5 220 The gist of the Petitione/s complaint in issue one is about the constitutionality of the appointment of a serving army Officer as Minister of State without first resigning from the army. It is the petitioners' contention that the appointment of General Katumba Wamala, a serving UPDF officer, as a Minister of State for Works is inconsistent with the duty of UPDF to be 'nonpartisan' under Article 208(2), subjects him to a conflict of interest which may compromise his office as a Minister, and contravenes Arficles 113(1), 113(4), 114(5),78(1)(c), 80(1)& (2), 205(2), 257(1) and 208(2) of the Constitution of the Republic of Uganda and Section 99 of the UPDF Act,2005. o

The respondents disagreed and submitted that the appointment did not contravene the provisions of the Constitution as alleged by the Petitioners.

225 The office of Minister of State is created by article 114(1) of the Constitution of Uganda, The appointment and qualifications for appointment to the office of Minister of State are similar as those applicable to a Cabinet Minister, This is by virtue of article 114 (1) and (2) of the Constitution which are couched in the terms below:

#### $114.$ **Other Ministers**

- The President may, with the approval of Parliament, appoint other Ministers to $(1)$ assist Cabinet Ministers in the performance of their functions. - Subject to the provisions of this article, article 113(1) of this Constitution shall apply $(2)$ to the appointment of Ministers under clause (1) of this article.

Under article 113(1) of the Constitution, the persons who qualify for appointment as Cabinet Ministers and Ministers of State fall in two categories, namely:

- Members of Parliament; and - 2. Persons qualified to be elected members of Parliament.

Article 113(1) of the Constitution provides as follows:

#### $113.$ "Cabinet Ministers

Cabinet Ministers shall be appointed by the President with the approval of $(1)$ Parliament from among members of Parliament or persons qualified to be elected members of Parliament.

There is no contest that at the time of his appointment as the Minister of State for Works, General Katumba Wamala was already a Member of Parliament as one of the ten army representatives in Parliament. The Supplementary Affidavit of the Clerk to the Parliament of 245 Uganda, Adolf Mwesige Kasaija, sworn on 13th April 2022 in this matter confirms the above position. As such, *prima facie*, he qualified for appointment as a Minister of State for Works. The contention of the petitioners is about the aspect of General Katumba Wamala being a serving military officer. It is the case of the petitioners that the appointment subjects him to conflict of interest which contravenes Article 208 (2) of the Constitution which requires the UPDF as an 250 institution and its individual officers to be non-partisan. Further, that his appointment as a Minister of State without first resigning from the army breached the several provisions of the Constitution which I have already alluded to in this judgment.

The non-partisan character of the UPDF and by extension, all its officers, is set out in Article $208(2)$ of the Constitution in the following terms: 255

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"The Uganda Peoples' Defence Forces shall be nonpartisan, national in character, patiotic, professional, disciplined, productive and subordinate to the civilian authority as esfabfished under fhis Consfff ution."

ln determining the constitutionality of the appointment of General Katumba Wamala as a Minister of State for Works while still serving as an army General, this court is required to consider all the provisions of the Constitution which have a bearing on the issue. This is in accordance with the principle of "harmonization" or "completeness" which obliges this court, when interpreting the Constitution, to read and consider the entire Constitution as an integrated whole with no particular provision destroying the other but each sustaining the other so as to 265 promote harmony of the Constitution see Dr, Paul K. Semoqerere and 2 others Vs, A,G, Constitutional Appeal No. 1 of 2002.

This Court has on not less than three previous occasions considered and pronounced itself on the Constitutionality of the appointment of serving army officers as Cabinet Ministers during the multi-party political system without first resigning from the army. This was in the cases of Darlington Sakwa & Another Vs Electoral Commission and 44 Others [2006] UGCC 3: Muyambi Ellady Vs Attornev General Constitutional Petition No. 26 OF 2011 and Hon. Joseph Sewunqu Vs Attorney GeneralConstitutiona!Petition No. 40 of 2013 (unreported).

ln particular, the case of Hon. Joseph Sewungu Vs Attorney General(ibid) is on all fours with the I petitioners' complaints in issue one in the instant matter. ln the above case, the subject matter of ]s the Constitutional Petition was the appointment of General Aronda Nyakairima (RlP) as the t\4inister of lnternal Affairs without prior resignation from the army as being in breach of articles 1(1),(2), (3), & (4),2,208(2),99(1), (2), (3), 210,209,71(1) (0,80(4),78(1) (c),72,73,90 and 94 of the Constitution of the Republic of Uganda. At the time of his appointment to Cabinet, General Aronda was a serving army officer and one of the ten army representatives in 280 Parliament. The same situation applies to General Katumba Wamala's case. Second, General Aronda did not resign from the army before his appointment as was the case of General Katumba Wamala, The accusation of the appointment exposing General Aronda Nyakairima to becoming "partisan" contrary to the'nonpartisan'character of UPDF prescribed by Article 208(2) Page 11 of 25

was raised against General Aronda Nyakairima as has been raised against General Katumba 28s Wamala

ln its unanimous decision in the case of Hon. Joseph Sewunau Vs Attorney General(ibid), this court (Egonda-Ntende, Elizabeth itlusoke, Barishaki Cheborion, Muzamiru M, Kbeedi & lrene Arlulyagonja, JCC) held thus:

"The cardinal function of the Cabinet as sef out under article 111(2) of the Constitution is "to determine, formulate and implement the policy of the Government and to perform such other functions as may be conferred by this Constitution or any other law". This is a bi-partisan mandate for the benefit of all the Citizens of the country irrespective of whether they voted for the Party that won the election or not. Nowhere is it provided'that under a Multi-pafty Political system, one has to be partisan in order to be abte to discharge the mandate of Cabinet. The Constitution left it open to the President to determine the persons he/she thinks are suitable to discharge the mandate and then subiect them to Parliamentary approval. Such persons can be from within Parliament and outside Parliament provided the concerned persons are qualified to be elected fitlembers of Parliament... Being part of the Parliament under a muttiparty sysfem does not deprive the UPDF representatives in the Parliament of their core quality of being non-partisan. ln the same vein, they do not /ose fhis core quality on account of being appointed to Cabinet. Srnce ... all Members of Parliament qualify for appointment to Cabinet, then it logically follows that army representatives in Parliament during the multiparty sysfem are part and parcel of the c/ass of hrlembers of Parliament who qualify for appointment to Cabinet."

30s

The above statement of the law still remains valid, and I have no reason to depart from it. lt applies with the same force to the office of Ministers of State whose role is stipulated under article 114 (1) of the Constitution to be "fo assisf Cabinet Ministers in the performance of their functions".

310 With regard to the Petitioners' contention that the appointment breached Section 99 of the UPDF Act, 2005, I would summarily dismiss the same. The mandate of this court is restricted by Article 137 of the Constitution to adjudication of questions as to the interpretation of the Constitution. lt does not extend to interpretation of the provisions of Acts of Parliament or the subsidiary legislations made thereunder save where there is an allegation that they are inconsistent with 31s the Constitution. No such allegation has been made in the instant case.

The aforesaid notwithstanding, Section 99 of the Uganda Peoples' Defence Forces (UPDF) Act provides that-

"A serving officer or militant who desires fo seek political office shallfirst resign or retire from the Defence Forces according to regulations made by the fr/linister."

320 The phrase to seek political office'is not defined by the UPDF Act. The Free Online Legal Dictionary, Featuring the Black's Law Dictionary, 2no Edition, defines "political office" to mean:- "the name given to the government office that is obtained bv an election " [emphasis added]

330 ln the context of Section 99 of the UPDF Act, the expression "to seek political office' , in its ordinary meaning, refers to a serving UPDF officer or militant who, of his own volition, wishes to vie for or contest for, or otherwise offer oneself for election to an elective political office. The section does not apply to the appointment of General Katumba Wamala to the office of Minister of State since the said office is neither a preserve of only elected persons nor attained.through election. The office is earned by appointment of the President. I am nonetheless mindful of the definition of the term "political office'as set out in Article 205 (2) of the Constitution in the terms below:

## "205 Prohibition of holding political offices concurrently

- (1) No person shall hold concurrently on a full-time basis, political offices - (a ) in the service of the Government and that of a local government; or - (b) in the seruice of a higher local government and that of a lower local government. - tn this article, "political office" means the office of a fitlinister, a member of Parliament or a member of a local government council, or any other office prescribed by Parliamenf." [Emphasis added] (2)

340 My understanding of the above article 205(2) is that the definition of "political office" as given in article 205(2) applies only to article 205 of the Constitution.

I have also considered the other articles of the Constitution complained about by the Petitioners namely: 7B(1)(c), S0(1)&(2), 9B(3), 205 (2), 208(4) and 257(1Xs) of the Constitution of the

o 335

Republic of Uganda. I have not found them relevant in the resolution of the issue of the constitutionality of the appointment of an army General as a Minister of State.

345 ln summary, I would therefore hold that the appointment of General Katumba Wamala as a Minister of State for works was not inconsistent with and in contravention of Articles 113(1), 113(4), 114(5), 78(1)(c), 80(1X2), 205(2),257(1) and 208(2) of the Constitution of the Republic of Uganda.

## ISSUE 2:

36s

O 350 Whether the vetting and approval of General Katumba Wamala, a serving UPDF offrcer, as a Stafe Minister for Works by Parliament's Committee on Appointments was inconslsfenf with and in contravention of Articles 2 and 79(3) of the 1995 Constitution of the Republic of Uganda.

35s 360 The gist of the Petitioners' complaint in issue two is that by Parliament approving the appointment of General Katumba Wamala as Minister of State for works which, from the Petitioners' perspective, was unconstitutional, then it abdicated its constitutional duty of protecting the Constitution which is the Supreme law of Uganda. They thus seek a deelaration that Parliament's approval of General Katumba Wamala as a State lvlinister while he was a serving UPDF officer, is inconsistent with and in contravention of Articles 2 and 79(3) of the Constitution. o

The respondent did not agree arguing that there was nothing unconstitutional in the appointment and approval of General Katumba Wamala as claimed by the petitioners.

Article 2 of the Constitution provides for the supremacy of the Constitution; while Article. T9(3) of the Constitution expressly enjoins Parliament with the duty to promote the Constitution as one of its core functions. lt is couched thus:

#### "79 Functions of Parliament

s Parliament shall protect fhis Consfffution and promote the democratic governance of Uganda."

Having determined in issue one that the appointment of General Katumba Wamala as State Minister for Works was not inconsistent with Articles 113(1), 78(1) (c), 80(1) & (2), 208(2), 205(2) and 257(1Xs) of the Constitution as claimed by the Petitioners, this issue automatically collapses with issue one. I would thus resolve issue two in the negative.

### ISSUE 3:

Whether Secfion 38(2) of the UPDF Act 2005 in as far as it permits serving officers and 37s militants of the UPDF to be attached or seconded to any Government department or O Agency, is rnconsrstentwith and in contravention of Articles 205(2),205(2) and 257(1)(s) of the Constitution of the Republic of Uganda.

C' 380 From their Written Submissions, it is the petitioners' contention that Section 38(2) of the UPDF Act, 2005, by permitting serving UPDF officers and militants to be deployed in any political departments or agencies of government renders them partisan in contravention of Articles 205(2), 208(2) and 257(1Xs) of 1995 Constitution of the Republic of Uganda. That where a UPDF officer is seconded to a ministry as a Minister or as a technocrat like permanent secretary or in some other capacity to a public institution or department of Government, her or his ability to be non-partisan is extinguished because s/he will not make independent choices as a Minister or technocrat but will be commanded to implement the objectives of a partisan Gov'ernment thereby making her or him partisan in contravention of Article 208(2) which Parliament never intended to apply to Ministers because they can't afford to be non-partisan by virtue of their political office.

The Respondent did not agree. He submitted that the petitioners' contention is misconceived in as far as it wrongly infers that Section 38(2) of the UPDF Act provides for the appointment of Ministers, who are the political heads of Ministries. Further, that secondment or attachment of

UPDF officers to serve in a government department does not render them partisan since they are seconded to serve the Government and not any political party.

39s

The issue of appointment of serving UPDF Officers as Ministers has already been discussed in this judgment under issue one. As such, I will restrict my evaluation of issue three to whether the secondment or deployment of serving UPDF Officers and militants as technocrats or in some other capacity to a public institution or department of Government renders them partisan contrary to Articles 205(2),208(2) and257(1)(s) of 1995 Constitution.

For purposes of appreciating the context of the petitioners' arguments about Section 38 (2) of the UPDF Act, I will set out the whole section. lt is couched thus:

# o "38. Attachment and Seco ndment

- 1) An officer or a militant shallbe attached or seconded to - a) Any unit of any military, naval or marine or air force established in East Africa;or - b) Any unit of any military, naval or marine or air force of a country which the President, by notice in the Gazette, declares to be a country to which this subsecfion applies. - 2) Officers and militants of the Defence Forces mav be attached or seconded to anv department or aqency of the Government, anv public or private institutions. private industry or anv other bodv. - 3) An officer or a militant may be loaned under an agreement between the fulinister and the appropriate authortty of another country or government, an agency or a civilian body. - 4) No officer or militant of the Reserue Forces or of any prescribed force who is nof mobilized shall, without his or her consent, be attached, seconded or loaned under fhr's secfion. - 5) Regulations sha// make provision for the manner in which and the conditions on which an officer or a militant may be attached, seconded or loaned under this section. - 6) An officer or a militant aftached, seconded or loaned under fhis secfion shall, for all purposes, continue to be a member of the Defence Forces." [Emphasis added]

4L5

On the other hand, both Article 205(2) and 257(1Xs) of the Constitution of the Republic of Uganda are simply definition clauses. Article 205(2) provides: -

"(2) ln this article, "political office" means the office of a lulinister, a member of Parliament or a member of a localgovernment council, or any other office prescribed by Parliament."

While Article 257(1)(s) defines the term "Minister" as used in the Constitution to mean "a Minister of the Government and includes a Atlinister of Sfafe and a Deputy A/linistef'.

435 430 I have failed to find any relationship between Section 38(2) of the UPDF Act on the one side, and Articles 205(2) and 257(1Xs) of the Constitution on the other side. As I observed earlier on in this judgment, Article 205(2) simply provides the definition of the expression "polfirca| office" as used in Article 205 of the Constitution. 0n the other hand, Article 257(1Xs) provides the definition of the term "Minister" as used in the Constitution. I find no connection between Articles 205(2) and 257(1)(s) and the Petitioners' claim in issue three that the officers and militants of the UPDF lose their non-partisan character upon deployment pursuant to Section 38(2) of the UPDF Act. a

As for Article 208(2) of the Constitution, it provides that "the Uganda Peoples' Defence Forces shall be non-partisan, national in character, patriotic, professional, disciplined, productive and subordinatetothe civilian authority as esfab/ished under fhis Consfrtution".

]o The Petitioners have, likewise, not demonstrated how the deployment of a UPDF Officer and militant in a government department or agency pursuant to Section 38(2) of the UPDF Act by itself compromises on her/his constitutional character of being non-partisan as enshrined in article 208(2) of the Constitution. All that is clear is that the Petitioners want to drag this court into the world of speculations. This is not acceptable. As this court observed in Hon. Miria 44s fitlatembe and 2 vs Aff ornev Generat Constitutional /Vo. 2 of 2005

> "The Court must be on ds guard to avoid premature adjudications and entanglement in abstract or speculative disputes between potential petitioners. ln gauging the fitneSs of any issue before it for judicial adjudication, this Court should not get involved in

425

450 uncertain or contingent future eyenfs which may or may never occur at all. lt will gnly interuene to correct excess or abuse. /f is a/so vital for the judicial process of this country that this Court musf see that petitioners have exhausted all the constitutionally available remedies before seeking protection and adiudication from it."

I would therefore answer this issue in the negative.

### ISSUE 4

455 Whether Sectrbn 53 of the UPDF Act, in as far as it requires officers and militants of the UPDF to take the Oath of Allegiance as specified in the Fifth Schedule of the Act is inconsisfe nt with and in contravention of Objective )00t1 of the National Objectives and Directive Principles of Sfafe Policy, and Articles 1(3), 2(1) & (2), 5(1), 98(1), and 208(2) & @ of the Constitution of the Republic of Uganda. o

Section 53 of the UPDF Act requires officers and militants to take the Oath of Allegiance in the Fifth Schedule, which oath states as follows:- 460

# .. THE REPUBLIC OF UGANDA

#### OATH OF ALLEGIANCE

l, .,Swear by the Almighty God/do solemnly and sincerely declare and affirm that I will be faithful and bear true allegiance to the President and the Republic of Uganda, and that I will as in duty bound, honestly and faithfully defend him/her and the Constitution of Uganda against all enemies, and I will obserue and obey all lawful orders of the officers set over me. I promise to teach and uphold in all officers and militants that may from time to time be placed under my command good discipline, bravery and trust in the country, so help me God.

S/GNED fhis ..... ,,,day of

# OFFICER/MILITANT'

The Petitioners' complaint about the Oath of Allegiance relates to the order in which certain words are set out in the said Oath of Allegiance. lt is the Petitioners' contention that the Oath of Allegiance requires soldiers to swear allegiance 'first' to the President and 'second' to the Republic of Uganda, and to defend (first) the President and (second) the Constitution of the 475

Page 18 of 25

Republic of Uganda against all enemies, which elevates the President to a supreme position above both the Constitution and the Republic of Uganda thereby rendering the Oath of Allegiance inconsistent and in contravention of Objective XXVI of the National Objectives and Directive Principles of State Policy and Articles 1(3),2(1)& (2),5(1),98(1) and 208(2) & (a) of the 1995 Constitution.

The Petitioners further contend that because the Oath requires UPDF officers and militants to swear/affirm to pay true allegiance 'first' to the President (and not to the Republic of Uganda first), and 'second' to the Constitution, this renders the UPDF officers and militants to be answerable to the President not the people, and it also enables the President to raise a personal army that is predominantly subordinate to him rather than to the Republic of Uganda, which is inconsistent and in contravention of the above cited Articles of the Constitution,

490 Objective XXVI of the National Objectives and Directive Principles of State Policy provides for accountability in the following terms: -

# Xru. Accountabil@

- (i ) All public offices shall be held in trust for the people. - t,t Allpersons placed in positions of leadership and responsibility shall, in their work, be answerable to the people. - (iii) All lavtfulmeasures shall be taken to expose, combat and eradicate corruption and abuse ormrsuse of power by those holding political and other public offices.'

On the other hand, the Articles of the Constitution alleged to be contravened by the Oath are couched as follows: -

- a) Afticle 1(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 fhis Consfffution." - b) Arlicle 2(1) "The Constitution is fhe supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda."

- c) Article 2(2) "lf any other law or any custom is inconsrstent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void." - d) Aticle 5(1) "Ugandais one Sovereign state and a Republic." - e) Article 98(1) "There shall be a President of Uganda who shall be the Head of Sfafe, Head of the Government and Commander-in-Chief of the Uganda People's Defence Forces and the Fountain of Honour." - 0 Article 208(2) "The Uganda People's Defence Forces shall be nonpartisan, national in character, patriotic, professional, disciplined, productive and subordinate to the civilian authority as esfab/ished under this Constitution." - g) Article 208(4) "No person shall raise an armed force except in accordance With the Constitution."

s20 As I have already stated, the Petitioners' complaint is about the order in which the words in the Oath of Allegiance were drafted. The complaint is not about the substance or actual content of the words in the Oath and how the substantive meaning of the same is impacted upon by the order in which they were drafted. ln adjudicating cases, Article 126(2)(e) of the Constitution requires this court to focus on substance and not form. I would accordingly find that the Petitioners have not established how the actual content of the Oath of Allegiance is inconsistent with the Objective XXVI of the National Objectives and Directive Principles of State Policy and Articles 1(3), 2(1) & (2), 5(1), 98(1) and 208(2) & (4) of the Constitution, and answer issue four in the negative.

#### ISSUE 5 525

Whether the Petitioners' challenge of the appointment of the Kyabazinga of Busoga, William Wibertorce Kadhumbula Nadiope Gabula lV, as a Special Envoy to the President is moot and academic.

The Petitioners alleged in their Petition that the appointment of the Kyabazinga of Busoga, William Wilberforce Kadhumbula Nadiope Gabula lV, by the President of the Republic of Uganda, as the President's Special Envoyon 15th February 2017, was inconsistentwith and in

contravention of Articles 246(3)(e )&(6) of the Constitution in as far as it predisposes him to participate in partisan politics yet he is a traditional or cultural leader.

535 ln his Answer to the Petition, the Respondent denied the claim of the Petitioners. And in his Written Submissions, the Respondent contended that the issue was moot and acadeinic. For this submission, the Respondent relied upon the Supplementary Affidavit deponed by the Secretary, Office of the President, Haji Yunus Kakande, in which he stated in paragraph 3 that:-

> "... the President upon being advised that the intention to appointthe Kyabazinga of Busoga, William Nadiope Gabula lV was not sustainable, the appointment was never implemented."

Haji Yunus Kakande further stated in paragraph 4 of his Affidavit that the Kyabazinga of Busoga is not an employee of the President.

A Petition is said to be moot or academic if its subject matter is hypothetical, speculative and not dealing with living or real-life facts and/or rights. See Hon. Sewungu Joesph and Anor Versus the Attorney GeneralOf Uqanda (supra).

It is trite law that Courts cannot be engaged in moot and academic discussions. The mootness doctrine bars Court from deciding cases in which the substance of the dispute has ceased to exist and there is no longer any actual controversy. See: Hon. Sewunqu Joesph and Anor Versus the Attornev General Of Uganda (supra): Uqanda Corporation Creamaries Ltd &'Another }o Vs Reamaton Ltd, Civil Reference No.l1 of 1999 of the Courl of Appeal(lJnreported,t andJhe Environment Action Network Vs Joseph Eryau Civil Application No. 98 of 2005 of the Court of Appeal.

From the evidence before this Court, the President's desire to appoint the Kyabazinga of Busoga as his Special Envoy was never implemented. The Kyabazinga of Busoga is not an sss employee of the President. ln those circumstances, resolving whether the alleged appointment was inconsistent with the Constitution is to involve this court in a matter which is moot and academic. I would decline to take that route and answer issue five in the affirmative.

## ISSUE 6

s60

s65

Whether the petitioners' challenge of the statement attributed to the President of the Republic of Uganda to the effect that he is not a seruant of the people of Uganda, is not a matter for constitutional interpretation.

The Petitioners alleged in their Petition that the statement by the President on 26m January 2017 , " ...1 am not your seruant ...', is inconsistent with and in contravention of Articles 1 , 9B(3), 99(3) and 103(2Xb) of the Constitution of the Republic of Uganda in as far as it defies the cardinal principle of popular sovereignty. The Petitioners thereafter elaborated their claim in Paragraphs 12 of their respective Affidavits in Support of the Petition thus:

"That on Thursday 26th January 2017, the President of the Republic of Uganda, H. E Yoweri Kaguta Museveni while celebrating the 31st anniversary of the NRA/tvl Liberation Day in Masindi town, Masindi district, said '/ am not an employee. I hear so/ne people saying that I am their seruant; I am not a seruant of anybody. I am a freedom fighter; that is why I do what I do. I don't do it because I am your seruant; I am not your seruant; I am just a freedom fighter; I am fighting for myself, for my belief;that's how I came in. lf anybody thinks you gave me a job, he is deceiving himself. I am just a freedom figltter whom you thought could help you also."

575 s80 It is the contention of the Petitioners that the President is a servant of the people of Uganda because he occupies the office of President in public trust under Objective XXVI of the Constitution; his emoluments are paid out of the Consolidated Fund; and he is elected by the people of Uganda. Further, that under Article 103(2Xb) and (4) he cannot contest for President unless he has collected a specific number of signatures from Ugandans in at least two thirds of the districts; and that he cannot be declared validly elected unless he garners a majority of votes casts by the people of Uganda whose welfare he swears to promote under Article 98(3) of the Constitution. o

The Petitioners therefore sought a declaration that 'under the current Constitutional framework, the President, specifically, President Yoweri Kaguta lrluseveni, is a seryant of the people of Uganda'.

ln reply to the Petitioners' allegations, the Respondent stated in his Answer to the Petition that not only doesn't the alleged statement raise any issue for constitutional interpretation by this Court but is also not actionable in so far as it would not amount to a directive or policy decision having legal effect.

- 590 Under Article 137 of the Constitution of the Republic of Uganda, for this court to have jurisdiction to adjudicate over any allegation of contravention of any provision of the Constitution, it must be shown prima facie that the allegation or claim as set out in the Petition involves a "guestion as to the interpretation of the Constitution". See: Aftorney General Vs Major General David Tinvanf,,TD Qr (lnt rt (|nnef itr fiinnel A A/n 1of 1997 lsmail Serugo Vs Kampala Ci\r - ses Council & Another Appeal No, 2 of 199: and Charles Kabaqambe vs Uganda Electricitv Board Petition No. 2 of 1999, o

What amounts to a "guestion as to the interpretation of lthel Constitution" has been the subject of several decisions of this court including Foundation for Human Riqhts lnitiative Vs Attornev General, Constitutional Petition No. 52 of 2011 (unrepofted) and Kzza Besiqye v 600 Attornev General. Constitutional No. 52 of 201 1 (Unreoorted.

Hon. Justice Christopher Madrama in the case of Foundation for Human Riqhts lnitiative Vs Attorney General (op ci| stated the meaning of the phrase "question as fo the interpretation of [the]Constitution" under Article 137 of the Constitution thus:

o 60s 'lrly understanding is that the word 'question" used in Article 137(1) means "controversy" or imports the meaning of an 'arguableissue" which discloses a genuine dispute about interpretation of the Constitution so as to resolve the controversy. lf the word "question" under Article 137(1) is read to mean "controversy' with pafticular reference to controversy as to interpretation, it would mean that the Constitutional Court ought to only determine petitions or references where there is a controversy or controversies about the meaning of a provision of the Constitution. This meaning is possib/e because the High Court has the constitutional mandate to interpret any provision of the Constitution unless there is a dispute about meaning thereof. ln that regard, all Judicial Officers take judicial oath to uphold the Constitution and the laws of Ugand a as esfab/is hed thereunder... 610

Page 23 of 26

615 620 625 ... An allegation of inconsistency with an afticle of the C,onstitution can fulfil the requirements of Article 137(3) of the Constitution but it is not sufficient on the face of it to merely allege breach or inconsistency with an Article or Articles of the Constitution by any act, omission or law. For the Constitutional Court to have jurisdiction such an allegation must have in it a controversy as to interpretation of the Constitution of the Republic of Uganda. lt follows that the question before court should involve a controversy about interpretation before the Constitutional Court assu/nes jurisdiction in the matter. As I have noted above, a question for interpretation must be an arguable case about interpretation and where there is some doubt about the meaning which the person having doubt needs cleared or their point of view adopted by the court whilethe adverse party has a contrary view about the meaning and scope of an article of the Constitution. ln other words, it must be a doubt which makes the meaning of an article controversial and which controversy should be cleared by the Constitutional Court."

The above definition is still a good statement of the law and I have no reason to depart from it.

O 630 Applying the aforesaid criteria to the instant matter, the question that arises is: does the Petitioners' complaint about the statement allegedly made by the President on 26th January 2017 to the effect that ", ..1 am not your servant ..." pima facie call for resolution of an arguable controversy about the interpretation or meaning of the provisions of the Constitution alleged to have been contravened namely, Articles 1, 9B(3),99(3) and 103(2Xb) of the Constitution of Uganda?

635 o 640 645 My finding is that nowhere is it demonstrated prima facie that the interpretation of the provisions of the Constitution allegedly breached is necessary for the resolution of the said claim. Furthermore, I am unable to identify any arguable controversy raised as to the meaning of the provisions of the Constitution allegedly breached by the impugned statement as set out in the Petition. What clearly emerges is that the substance of the Petitioners complaint is about an issue which falls in the realm of Political and Organisational leadership theory and practice namely, the concept of leadership styles. Said differently, "Servant leadership" is simply one of the several leadership styles that have been documented by scholars of Organisational leadership theory and practice. The other common types of leadership styles include Democratic Leadership, Autocratic Leadership, Laissez-Faire Leadership, Transformational Leadership, Transactional Leadership, Bureaucratic Leadership, Servant Leadership, Coach-style

Page 24 of 26

-------- ## Leadership, Charismatic Leadership and Strategic Leadership, https://corporatefinanceinstitute.com/resources/manaqemenUleadership-styles/ See

d' 650 560 Leadership style is a living subject. The factors which influence a leader's choice of any particular leadership style to apply in any given situation, the dominant characteristics of each leadership style, the appropriateness of the different leadership styles in any given situation(s), the strengths and limitations of the different leadership styles, and the consequences of each choice of style on the stakeholders and the whole ball game of achievement of set goals have been, and will continue to be, subjects of debates which are best addressed in Universities and other institutions of Political and Organisational leadership theory and practice and not a court of law, Our Constitution guarantees every person in Uganda the right to express his thoughts and views freely on any subject while being respectful of the fundamental and other human rights of others and "public interest'. This is by virtue of Article 29(1Xa) and (b) of the Constitution which guarantees the freedom of speech and expression and freedom of thought, conscience and belief, read along with Article 43 of the Constitution. The President of Uganda, like any other Ugandan, is not excluded from the enjoyment of those rights. The contested statement was simply an expression of the President's views on the subject of leadership at the time. The Petitioners and any other persons in Uganda are entitled to ignore or agree or disagree,with the President's views about the leadership style he seeks to define his legacy. Differences relating to political and leadership concepts should not by themselves constitute a cause of action entitling the Petitioners to seek redress from this court, eb'

I would accordingly find that the impugned statement doesn't fall within the ambit of questions for adjudication by this court.

### ISSUE 7

## Whether the petitioners are entitled to the declaration and orders sought?

670 Having settled all the issues raised in this matter against the Petitioners, I would dismiss the Petition with no order as to costs as the Petitioners' action was a public interest litigation.

Page 25 of 25

Signed, dated and delivered at Kampala this 21 day of Jan 2023

MUZAMIRU MUTANGULA KIBEEDI **Justice of the Constitutional Court**

## THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

### **CONSTITUTIONAL PETITION NO. 19 OF 2017**

1. MUGISHA ROBERT

2. BWENGYE DEUSDEDIT ] ::::::::::::::::::::::::::::PETITIONERS

$\mathbf{1}$

### **VERSUS**

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

CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE STEPHEN MUSOTA, JCC HON. JUSTICE MUZAMIRU KIBEEDI, JCC HON. JUSTICE IRENE MULYAGONJA, JCC HON. JUSTICE MONICA K. MUGENYI, JCC

# JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JCC

I have the benefit of reading in draft the judgment by my brother Hon. Justice Kibeedi Muzamiru, JA.

I agree with his analysis and the orders he has proposed.

Dated this $\overrightarrow{Q}$ day of $\overrightarrow{Q}$ $2023$

the Sund Cur

**Stephen Musota**

**JUSTICE OF APPEAL**

## THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

### **CONSTITUTIONAL PETITION NO. 19 OF 2017**

1. MUGISHA ROBERT 1

2. BWENGYE DEUSDEDIT ] ::::::::::::::::::::::::::PETITIONERS

### **VERSUS**

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

CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE STEPHEN MUSOTA, JCC HON. JUSTICE MUZAMIRU KIBEEDI, JCC HON. JUSTICE IRENE MULYAGONJA, JCC HON. JUSTICE MONICA K. MUGENYI, JCC

# JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JCC

I have the benefit of reading in draft the judgment by my brother Hon. Justice Kibeedi Muzamiru, JA.

I agree with his analysis and the orders he has proposed.

Dated this $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\overline{a}$ day of $\$

Sum Cum

**Stephen Musota**

**JUSTICE OF APPEAL**

![](2__page_28_Picture_0.jpeg)

TIIE REPT'BLIC OF UGAITDA

## THE CONSTITUTIONAL COURT OF UGANDA AT I(AMPALA

(Coram: Buteera, DCJ; Musota, Kibeedi, Mulyagonja & Mugenyi, JJCC)

### CON-STITUTIONAL PETITION NO. 19 OF 2017

1. ROBERT MUGISHA 2. DEUSDEDIT BWENGYE PETITIONERS

VERSUS

THE ATTORNEY GENERAL RESPONDENT

Constitutional Petition No. l9 of 2017

### JUDgMENT OF MONICA K. MUGENYI. JCC

- 1. I have had the benefit of reading in draft the judgment of my brother, Justice Muzamiru M. Kibeedi, JCC in respect of this Petition. - 2. I agree with his findings, conclusions and the orders proposed, and have nothing usefulto add.

Dated and delivered at Kampala this .\$- day of J,,,^ 2023.

l' /

Monica K. Mugenyi Justice of the Gonstitutional Court

)

Constitutional Petition No. I 9 of 2017

### THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Richard Buteera DCJ, Stephen Musota, Muzamiru M. Kibeedi, Irene Mulyagonja & Monica K. Mugenyi, JJCC)

# **CONSTITUTIONAL PETITION NO. 19 OF 2017**

### 1. MUGISHA ROBERT

$\overrightarrow{a}$

$\overline{4}$

2. BWENGYE DEUSDEDIT ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

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

# JUDGMENT OF IRENE MULYAGONJA, JCC

I have had the benefit of reading in draft the judgment of my learned brother, Muzamiru Kibeedi, JCC. I agree with his decision that the petition should be dismissed for the reasons that he has given, with no order as to costs.

Dated at Kampala this Dath day of Jan 2023.

Ix Mulyagonja

JUSTICE OF THE CONSTITUTIONAL COURT