Twase v Attorney General (Consitutional Petition 45 of 2017) [2024] UGCC 16 (7 May 2024)


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THE REPUBLIC OF UGAT{DA

# THE CONSTITUTIONAL COURT OF UGANDA AT KAIVIPALA

(Coram: Buteera, DCJ, Bamugemereire, Kbeedi, Mulyagonja & Mugenyi, JJCC)

# CONSTITUTIONAL PETITION 45 OF 2017

TWASE JIMMY PETITIONER

VERSUS

ATTORNEY GENERAL RESPONDENT

# JUDGMENT OF MONICA K. MUGENYI. JCC

### A. Introduction

- 1. This Petition was lodged by Mr. Jimmy Twase ('the Petitioner') challenging the failure by the office of the Attorney General ('the Respondent') to ensure the translation into local Ugandan languages and dissemination of the Uganda Constitution (as amended)as required by Article 4(a) of the Constitution. The Respondent is further faulted for the omission to teach the Constitution in all educational institutions and through public media programs in contravention of Article a(b) of the Constitution. The Petition is supported by an affidavit deposed by the Petitioner and filed in this Court on 11th December 2017. - 2. The Respondent denies any omission, refusal or failure to translate the Constitution and ensure its dissemination and/ or publication/ broadcast in the media. !t is asserted that the Law Reform Commission has published an abridged and simplified version of the Constitution that is freely available to the public, and has translated the Constitution in Acholi, Ateso, Dhur Alur, Langi, Luganda, Lugbara Ti, Lumasaba, Lusoga, Runyankore/ Rukiga and Runyoro/ Rutoro,. Furthermore, the National Curriculum Development Centre has incorporated the teaching of the Constitution in the primary and secondary curriculum, and extensive media campaigns have been undertaken by the Uganda Human Rights Commission (UHRC) to inform the public about their civic rights and duties under the Constitution. - 3. The Answer to the Petition is supported by an affidavit in reply deposed by Jimmy Oburu Odoi, a Principal State Attorney and filed in this Court on 1Oth April January 2018. lt is additionally supported by four supplementary affidavits deponed by Mr. Kamadi Byonaye, Ms. Grace K. Baguma, AIP Bamwesigye Owen and Ms. Bernadette Nalule Mudde. - 4. At the hearing, the Petitioner was represented by Mr. Geoffrey Turyasima, while Mr. Richard Adrole, an Assistant Commissioner, and Ms. Lydia Mugisa, a State Attorney, represented the Respondent.

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#### B. Issues for Determination

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- 5. The Petitioner framed the following issues for determination: - l. Whether the State has fulfilled its obligation of promotion of public awareness of the Constitution under Article 4 of the Constitution. - ll. What remedies are available to the parties.

# 6. On the other hand, the Respondent proposed a more detailed set of issues as reproduced below.

- l. Whether the petition raises any issues for Constitutional interpretation - ll. Whether the Government has omitted, refused or failed to translate the 1995 Constitution into Ugandan languages and to disseminate the same as widely as possible in contravention of Article 4(a) of the Constitution. - lll. Whether the Government has omitted, refused or failed to provide for the teaching of the Constitution in all educational institutions and armed forces training institutions in contravention of Article 4(b) of the Constitution. - lV. Whether the Govemment has omitted, refused or failed to regularly transmit and publish programs about the Constitution through the media generally in contravention of Article 4(b) of the Constitution. - V. lf issues 2, 3 and 4 are answered in the affirmative, whether the Government's failure to comply with Article 4(a) and (b) of the Constitution has incapacitated the Petitioner and majority of other Ugandans from exercising their sovereignty and expressing their will and consent, defending the Constitution and fulfilling their Constitutional duties as provided for under Articles 1 (1), (2) and (3), 3(1), (2), (3), (4), (5), (6) and Objective XXIX(a) and (g) of the National Objectives and Directive Principles of State Policy. - Vl. lf issues 2, 3 and 4 are answered in the affirmative, whether the Parliament of Uganda's amendment of provisions of the Constitution before Government had complied with Article 4 was unconstitutional as alleged. - Vll. Whether the Petitioner is entitled to the declarations and orders sought. - 7. ln myview /ssues 2- 6as proposed bythe Respondentwould be subsumed in /ssue No. I as framed by the Petitioner, while lssue No. 7 as framed by the Respondent is similarly addressed in lssue No. 3 as proposed by the Petitioner. Consequently, the Petition shall be determined on the basis of the following issues:

- (1) Whether the petition raises any issues for Constitutional interpretation. - (21 Whether the State has fulfilled its obligation of promotion of public awareness of the Constitution under Article 4 of the Constitution. - (3) What remedies are available to the parties. - 8. I propose to interrogate /ssue No. 1 prior to the determination of /ssues 2 and 3, touching as it does on the Court's jurisdiction.

## C. Parties' Submissions

- 9. The Respondent contends that the Petition is incompetent insofar as it raises no question for constitutional interpretation. Reference is made to Mbabali Jude v Edward Kiwanuka Sekandi. Constitutional Petition No. 28 of 2012, where lsmail Seruoo v Kampala Citv Council & Another. Constitutional Appeal No. 2 of 1998 was cited for the proposition that the jurisdiction of this Court is properly invoked where a petition or reference shows on the face of it that the interpretation of the Constitution is required to resolve the dispute between the parties. Whereas the Petitioner faults the State for reneging on its obligations under Article 4(a) and (b) of the Constitution, in the Respondent's view this does not necessitate any constitutional interpretation as the invoked constitutional provisions clearly spell out the actions required of the State. The petition thus seeks the application or enforcement of the Constitution, which jurisdiction is vested in the High Court. - 10. No submissions were forthcoming from the Petitioner on the question of jurisdiction. The petition shall therefore be determined on the basis of the submissions before the Court.

## D. Determination

- 11. This Court's jurisdiction in constitutional cases is succinctly delineated in Article 137(1) and (3) of the Constitution, which for ease of reference is reproduced below. - (1) Any question as to the interpretation of this Constitution sha!! be determined by the Court of Appeal sitting as the constitutional court. - (21 - (3) A person who alleges that -

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- (a) An Act of Parliament or any other law or anything in or done under the authority of any law; or - (b) Any act or omission by any person or authority,

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is inconsistent with or in contravention of a provision of this Gonstitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate.

l2. Article 137(1) has been severally construed to restrict the Constitutional Court's jurisdiction solely to the interpretation of the Constitution. In Attornev General v , the Supreme Court was quite categorical on the delimitations of the Constitutional Court's interpretative jurisdiction under Article 137 of the Constitution, clarifying it as follows (per Wambuzi, CJ):

> ln my view jurisdiction is limited under Article 137(1) of the Constitution to interpretation of the Constitution. Put in a different way no other jurisdiction apart from interpretation of the Constitution is given. ln these circumstances I would hold that unless the question before the Constitutional Court depends for its determination on the interpretation or construction of a provision of the Constitution, the Constitutional Court has no jurisdiction.

13. The emphasis on this Court's exclusive interpretative jurisdiction is further espoused in the latter case of lsmail Seruqo v Kampala Gitv Gouncil & Another (supra), where a distinction was drawn between a constitutional violation that requires constitutional interpretation for its determination, and a similar violation the remedy for which lies not in constitutional interpretation but the enforcement of the infringed rights as envisaged under Article 50 of the Constitution. lt was observed (per Wambuzi, CJ):

> For the constitutional Court to have jurisdiction the petition must show, on the face of it, that interpretation of a provision of the Constitution is required. lt is not enough to allege merely that a Constitutional provision has been violated. lf therefore any rights have been violated as claimed, these are enforceable under Article 50 of the Constitution by another competent Court.

14.|n this case, Article 4 (the invoked constitutional provision) reads as follows:

Promotion of public awareness of the Constitution.

The State shall promote public awareness of this Constitution by-

- (a) translating it into Ugandan languages and disseminating it as widely as possible; and - (b) providing for the teaching of the Constitution in all educational institutions and armed forces training institutions and regularly transmitting and publishing programmes through the media generally. - 15.1n my considered view, the nature of state obligations flowing from the foregoing constitutional provisions are quite clear and need no interpretation. As to whether or not the State has complied with those obligations, as is the case before us, this imputes an action to enforce or give effect to the invoked constitutional provisions. lndeed, the following remedies sought by the Petitioner underscores this. He inter a/ra seeks: - <sup>I</sup>. A directive that the State/Govemment of Uganda immediately and without any excuse comply with Article 4 of the 1995 Constitution. - ll. A permanent injunction restrainingthe Government of Uganda, its parliament or any other department or body from amending any provisions of fhe 1995 Constitution before complying with Arlicle 4 of the Constitution. - 16. Such remedies fall squarely within the provisions of Article 50(1) of the Constitution which reads as follows:

Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.

- 17. Where, as is the case before us presently, a party seeks to enforce any right that is conferred or delineated by the Constitution but which right does not necessitate constitutional interpretation, such party would have recourse to the enforcement of his/ her rights before other courts of judicature and not necessarily this Court, the jurisdiction of which is restricted to constitutional interpretation. - 18. This Court would only provide redress under Article 137(4) of the Constitution where such redress flows directly from its interpretative function under Article 137(3). The distinction between the nature of redress sought under Articles 50(1) and 137(4) of the Constitution was clarified in lsmail Seruqo v Kampala Citv Gouncil & Another (supra) as follows (per Mulenga, JSC):

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Such application for redress can be made to the Constitutional Court, only in the context of a petition under Article 137 brought principally for the interpretation of the Constitution. lt is the provisions in clauses (3) and (4) of Article 137 that empowerthe Constitutional Court, when adjudicating on a petition for interpretation of the Constitution, to grant redress where appropriate, Clause (3) provides, in effect, that when a person petitions for a declaration on interpretation of the Constitution, he may also petition for redress where appropriate. .... lt follows that a person who seeks to enforce a right or freedom guaranteed under the Constitution, by claiming redress for its infringement, but whose claim does not call for an interpretation of the Constitution, has to apply to any other Court. (My emphasis)

19. For ease of reference, Article 137(4) is reproduced below.

#### Article 137(4)

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Where upon determination of a petition under clause (3) of this article the constitutional court considers that there is need for redress in addition to the declaration sought, the constitutional court may -

- (a) Grant an order of redress, or - (b) Refer the matter to the High Court to investigate and determine the appropriate redress.

20. As was subsequently observed by this Court in Stephen Asiimwe & Others v Attornev General. Constitutional Petition No. 15 of 20{6 (unreported), it would appear that the judicial process delineated in Article 50(1) pertains to the enforcement or application of the Constitution by the ordinary civil courts, while the redress that might arise underArticle fi7\$) is purely incidentalto the constitutional interpretation mandate of the Constitutional Court. The Court then held:

> The Constitutional Court's jurisdiction is properly invoked where the gravamen of a matter before it is the interpretation of specified constitutional provisions to determine the constitutionality of an impugned Act or actions undertaken thereunder, or the acts or omissions of any person or authority. Pursuant to such an interpretation, the Court may under Article 137(4) grant declarations sought by a petitioner and such other redress as it deems fit.

21.|n the matter before the Court presently, the Petitioner simply seeks to enforce the succinct and unambiguous provisions of Article 4 of the Constitution, to have the Constitution translated, taught and publicized in the media. He further seeks to forestall further amendment to the Constitution before the foregoing obligations have been undertaken. As was quite aptly observed in Attornev Generalv Maior General David Tinvefuza (supra), a constitutional breach would not rpso facto invoke this Court's jurisdiction unless there was a discernible question inherent therein the resolution of which is entirely dependent on constitutional interpretation. Stated differently, 'a person who seeks to enforce a right or freedom guaranteed under the Constitution, by claiming redress for its infringement, but whose claim does not call for an interpretation of the Constitution, has to apply to any other Court.' See lsmail Seruqo v Kampala Citv Council & Another (supra).

22. Consequently, insofar as the Petitioner seeks to enforce state obligations that are spelt out in Article 4 of the Constitution, which enforcement does not call for constitutional interpretation, his remedy lies under Article 50(1) of the Constitution before the ordinary courts of law rather than this constitutional court. See lsmarT Seruqo v Kampala Citv Council & Another (supra). I am satisfied, therefore, that the petition does not invoke the jurisdiction of this Court and would resolve the point of law raised by the Respondent in the affirmative.

#### DISPOSITION

23. Having so held, I find no reason to entertain the residual issues in this matter. ln the result, ! would dismiss this petition with no order as to costs.

l\* Dated and delivered at Kampala this ....7......day of ......tn. <sup>Y</sup> 2024.

(

rMonica K. Mugenyi Justice of the Constitutional Court

t This judgment was signed before this judge ceased to hold that office

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

{*Coram: Buteera, DCJ, Bamugemereire, Kibeedi, Mulyagonja & Mugenyi, JJCC*}

### **CONSTITUTIONAL PETITION NO. 45 OF 2017**

## TWASE JIMMY::::::::::::::::::::::::::::::::::: **VERSUS** ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

## JUDGMENT OF CATHERINE BAMUGEMEREIRE, JCC

I have had the opportunity of reading in draft, the Judgment of my Learned Sister Monica K. Mugenyi, JCC. I agree with her reasoning and declarations. I would dismiss this petition with no order as to costs.

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

$\mathcal{B}_{\text{e}}$

**CATHERINE BAMUGEMEREIRE** JUSTICE OF THE CONSTITUTIONAL COURT

## THE REPUBLIC OF UGANDA

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## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Buteera, DCJ, Bamugemereire, Kbeedi, Mulyagonja & firlugenyi, JJCC)

## CONSTITUTIONAL PETITION 45 OF 2017

TWASE JIMMY PETITIONER

## VERSUS

ATTORNEY GENERAL RESPONDENT

### JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI. JCC

I have had the benefit of reading in draft the Judgment prepared by my learned Sister, Monica K. Mugenyi, JCC. lconcur.

Delivered and dated at Kampala this day 2024

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MUZAMIRU MUTANGULA KIBEED!

Justice of the Constitutional Court

#### THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Buteera, DCJ, Bamugemereire, Kibedi, Mulyagonja & Mugenyi, $(JCC)$

## **CONSTITUTIONAL PETITION 45 OF 2017**

TWASE JIMMY:::::::::::::::::::::::::::::::::::

#### **VERSUS**

# ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

## JUDGMENT OF IRENE MULYAGONJA, JCC

I have had the benefit of reading in draft the judgment of my sister, Monica K. Mugenyi, JCC. I agree that this petition should be dismissed for the reasons that she had ably given, and with no order as to costs.

Dated at Kampala this $\mathcal{H}$ day of $\mathcal{H}$ 2024

Irene Mulyagonja JUSTICE OF THE CONSTITUTIONAL COURT

#### THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Buteera-DCJ, Bamugemereire, Kibeedi, Mulyagonja & Mugenyi JJCC)

### **CONSTITUTIONAL PETITION NO. 45 OF 2017**

**PETITIONER TWASE JIMMY** ===================

#### **VERSUS**

THE ATTORNEY GENERAL OF UGANDA $====$ RESPONDENT

## JUDGMENT OF RICHARD BUTEERA, DCJ

I have had the opportunity of reading in draft the Judgment of Justice Monica K. Mugenyi, JCC.

I agree with her reasoning, decision and declarations she proposed. I have nothing useful to add.

As Bamugemereire, Kibeedi and Mulyagonja, JJCC members of this Coram also agree, this Petition stands dismissed with no orders to costs.

Dated this ....................................

**Richard Buteera** DEPUTY CHIEF JUSTICE

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