Okello-Okello and Others v Attorney General and Electoral Commission (Constitutional Petition No. 4 of 2005 Ruling-1) [2005] UGCC 10 (18 July 2005)

Full Case Text

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### THE REPUBLIC OF UGANDA

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

#### CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ $10$ HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA HON. MR. JUSTICE S. B. K. KAVUMA, JA

**CONSTITUTIONAL PETITION NO.4 OF 2005**

- **1.** OKELLO OKELLO JOHN LIVINGSTONE - $2.$ HAJI BADRU WENGULO - 3. **BETTY KAMYA** - 4. **SAM NJUBA** - $$ HON. ISSA KIKUNGWE - HON. KEN. LUKYAMUZI::::::::::::::::::::::::PETITIONERS 6.

#### **VERSUS**

- **1.** THE ATTORNEY GENERAL - $\mathbf{2}.$ THE ELECTRAL COMMISSION ::::::::::: RESPONDENTS - 30

## (Arising from the Constitutional Petition No. 4 of

#### $2005)$

### **RULING**

Immediately after the dismissal of Constitutional Petition No.4 of 2005 (Okello Okello and 6 others vs Attorney General and Electoral Commission) on 14/07/2005, Mr. Walubiri intimated to this Court that the petitioners had instructed him to appeal to the Supreme Court against the judgement of this Court.

$\mathbf{1}$

He, therefore, requested this Court to direct the Registrar to, urgently, prepare and compile a written record of proceedings to enable him file the appeal to the Supreme Court, which we accordingly do.

I0 However, given the short period between 14 IO7/2OOS and 28tn July 2005 when the referendum is scheduled to take place and the pressure of work of this Court, Mr. Walubiri did not think that the record of proceedings would be ready in time for the Supreme Court to hear and dispose of the appeal before 28107 lO5. He, therefore, in an informal application prayed this Court to exercise its inherent powers under Rules 1 (3) of The Rules of this Court to suspend or postpone the referendum process to enable the appellants to file the relevant documents for the disposal of the appeal by the Supreme Court. Counsel advanced two main reasons for the application.

Firstly, if the referendum for the purpose of enabling the people to change the political system is held before the disposal of the petitioners' intended appeal, it will be rendered nugatory.

Secondly, not only the seven petitioners but millions of Ugandans are interested in the intended appeal. Even as minorities they have, under article L32 l2l of The Constitution, a right to appeal to the Supreme Court. They strongly feel that the referendum scheduled for 28 l07 I2OOS should not be held because it is unconstitutional.

In reply, Mr. Joseph Matsiko, representing both respondents opposed the application. He submitted that it was incompetent and misconceived. The Court having delivered its judgement was functus officio. He pointed out that the proper procedure to adopt was to hle a notice of appeal under the Supreme Court Rules Directions, 1996.

Further, as far as he was concerned, suspension of the referendum process will not serve the ends of justice. It involves millions of Ugandans and would stop the people of this country from exercising their rights to determine how they should be governed.

We heard the addresses and arguments of both learned counsel for the parties. We have also had a careful perusal of the relevant provisions of the law and authorities applicable to this matter. The Court's findings are stated as below.

Regarding Mr. Matsiko submission on lack of jurisdiction of this Court to entertain the application, the functus officio rule is not applicable to this matter. The informal application made on behalf of the petitioners was properly before this Court under Rules 42 l3l and 1 (3) of The Rules of this Court.

Rule 42 (3f states as follows.

" SubJect to sub ntle (3) and to ang ntle alloulng infonnal applicatlon all dpplications to the court

shqll be bg motion, uthich sholl state the grounds oJ the application.

- (3) The Rule shqll not applg - (q) to application made in the course of hearing" a - (b)

Rule 1 (3) provides as follows:-

uNothing in these Rules shall be tcken to llmlt or otherwise affect inherent pouer of the CourA or the High Court, to make such orders as mag be necessary Jor the attaining tlrc ends of Justice or to preuent abuse of process of ang such court, and that pourer sha,ll extend. to setting d slde judgements uthich houe been protrcd null and uold after theg haue been passed, and sho,ll be exercised to preuent qn dbuse ol the process of ang court caused bg delag'.

Clearly, under the aforesaid provisions of Rule 1 (3), this Court is seized with jurisdiction to entertain the petitioners' informal application.

T\rrning to the merits of this application, it is true this Court is kept extremely busy but the petitioners'concern that the record of proceedings may not be compiled in time for the Supreme Court to dispose of their appeal is rather speculative. However, this matter of the record of court l0

proceedings, has been already handled administratively. Further, we have no evidence to show that the petitioners' intended appeal will be rendered nugatory if not disposed of before the referendum scheduled for 28107 l2OO5 is held. The law makes provisions to take care of such situations. In this Court's view, the petitioners'fears are unfounded.

Again, as it was rightly pointed out by Mr. Matsiko, on the record before us, there is no cogent evidence to persuade us to believe that apart from the petitioners, millions of other people are interested in the appeal. The petition not was brought in a representative capacity. It might equally be argued by the respondents that millions of Ugandans are also interested in participating in the referendum process scheduled for 28 I 07 I 2OO5.

On the other hand, it is not disputed that the referendum involves the whole country and the preparations are well underway. We take judicial notice that a lot of expenses have been incurred in connection with and a lot of time spent on the process. In our view, suspension or postponement of the referendum process will no doubt escalate the expenditure of the exercise which is one of the greatest petitioners' concerns.

Considering all the issues involved, the purpose of the referendum and all the surrounding circumstances, suspension of the process as submitted by Mr. Matsiko will not serve the ends of justice. On the contrary, it may stop 30

the people from exercising their sovereignty to determine the political system under which they wish to be governed within the stipulated time laid down in the Constitution.

l0 Regarding Mr. Walubiri's submission that the petitioners and other millions of people strongly feel that holding the coming referendum will be unconstitutional, we do not agree with this proposition. Our judgement is clear. Having found that issue in the negative, we cannot rely on it to grant the application. In agreement with the finding of Justice Twinomujuni in this petition at P. 51 lines 1-4, of his judgement which reads as follows: -

> "There are of course, cheaper methods of changing the preaailtng potitical sgstem, but thdt d.ecision falls entirely within the discretion conferred. on Parliament bg the Constitrttion. ft is not Jor the coutt to tell Pdrliqment how to exercise its discretion on the mqtter".

This Court, therefore, cannot dictate to Parliament how to exercise its discretion as to what method to adopt when changing the prevailing political system. In the premises there is no justification for suspension of the referendum process.

In the result, we are declined to invoke the Court's inherent powers under Rules 1 (3) of The Rules of this Court, to grant the order to suspend the referendum process. It

would be an av,{ul waste of time and money. The application stands dismissed with no order as to costs.

Dated at Kampala this 18th day of July 2005.

# L. E. M. MUKASA-KIKONYOGO HON. DEPUTY CHIEF JUSTICE

A. E. N. MPAGI-BAHIGEINE HON. JUSTICE OF APPEAL

# AMOS TWINOMUJUNI HON. JUSTICE OF APPEAL

i0 C. N. B. KITUMBA HON. JUSTICE OF APPEAL

> S. B. K. KAVUMA HON. JUSTICE OF APPEAL

> > 7

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