Uganda Law Society v Attorney General (Constitutional Petition 8 of 2000) [2001] UGCC 4 (23 November 2001)

Full Case Text

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

### CORAM:

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HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. MR. JUSTICE C. M. KATO, JA HON. MR. JUSTICE G. M. OKELLO, JA HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. LADY JUSTICE C. N. B. KITUMBA. JA

### **CONSTITUTIONAL PETITION NO.8 OF 2000**

- THE UGANDA LAW SOCIETY $1$ - JUSTIN SEMUYABA::::::::::::::::::::::::::::::::::: $2.$

#### **VERSUS**

THE ATTORNEY GENERAL OF UGANDA ::::::::::::::::: RESPONDENT 20

### JUDGMENT OF MUKASA-KIKONYOGO, DCJ

This petition is filed by the Uganda Law Society and Justin Ssemuyaba, a practising advocate in Uganda, hereinafter to be 25 referred to as the petitioners. It is brought against the Attorney General hereinafter to be called the Respondent. A similar Constitutional Petition No. 6 of 2000 filed against the Respondent by Karuhanga Chapaa and 2 others fixed for hearing on the same day of 4th September, 2001 was by agreement of the parties stayed 30 pending the determination of the present petition No.8 as a test case.

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5 88, 89 and 90 of The Constitution of the Republic of Uganda' lt was subsequently debated in Parliament and on 1't September, 2000 was passed into an Act known as The Constitutional Amendment Act 13 of 2000. lt was also assented to on the same day of 1"t September, 2000. The Act did not only amend the provisions of Articles 88' 89 and 90 of the constitution which had been gazetted but also Articles 97 and 257 which had not been published. lt inserted a new Afticle 257A into the Constitution. The petitioners aggrieved by the manner in which Parliament passed the Act filed this petition before this court. They were represented by Mr. John Matovu, assisted by Mr. M. Kabega while Mr. Denis Bireije, Commissioner for Civil Litigation, appeared for the resPondent. l0 t5

The issue for this court to determine is:

"Whether Parliament followed the proper procedure when enacting Act 13 of 2000 known as "The Constitutional Amendment Act" 20

It was the strong contention of Counsel for the petitioners that Act zs No.l3 of 2000 was passed contrary to the procedure for amending the Constitution set out in Articles 258, 259, 261 and 262 of the constitution and are accordingly seeking a declaration of this court that the Act is null and void.

It was argued by Mr. Matovu that Parliament did not comply with Article 258 of the Constitution which provides : l0

- $(1)$ Subject to the provisions of this Constitution, Parliament may amend by way of, addition, variation or repeal any provision of this Constitution In accordance with the procedure laid down in this Chapter. - This Constitution shall not be amended except by an $(2)$ Act of Parliament. - the sole purpose of which is to amend this $(a)$ **Constitution and**

15 The Act has passed in accordance with this Chapter. $(b)$ It was the contention of the counsel for the petitioners that the Act was not restricted to adding, varying or repealing but, Parliament went beyond that. It acted outside its powers of amendment conferred on it by the Constitution. It was wrong for Parliament to replace or make provisions in relation to quorum as stated in the preamble. As far as counsel was concerned Parliament went beyond repealing and inserted new clauses and Article 257A. which had not been gazetted.

In reply, Mr. Bireije, Counsel for the respondent, submitted that 25 Parliament applied the correct procedure when enacting Act 13 of 2000. The Act was passed in accordance with Articles 258, 261 and 262 of the Constitution. Article 259 mentioned by counsel for the petitioners is not relevant. He relied on Article 257 (9) which he said explained what Parliament did. 30

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#### j Article 257 (9) reads:-

"ln this Constitution, reference to amendment of any provisions of this Constitution or any Act of parliament include references to the alteration, modification or reenactment with or without amendment or modification of that provision, the suspension or repeal of that provision and the making of a different provision in place of that provision"

t5 counsel for the petitioners objected to this clause because it was of general application. I see no problem because its application is not excluded from constitutional amendment Bills. lthink it was intended to define and clarify what Constituted an amendment. lt is an interpretation clause.

I agree with Mr. Bireije that the amendment complained of complied with the procedure laid down by Clause I of Article 258. The amendment was by way of variation, addition and repeal. lnserting Article 257 A as was submitted by Mr. Bireije was adding to Article 257 so was the insertion of new provisions to Article 97. The oxford Advanced Learners Dictionary defines the term "ihsert" as inter alia referring to "a thing inserted especially an additional section in a book, newspaper etc"

30 Further Mr. Matovu complained of the use of the term ,,replacing in the preamble" I do not find any merit in counsel's arguments because

after repealing one provision another provision could be added to replace $5$ what was repealed. This to me seems to be a matter of semantics or language.

With regard to the complaint that Act 13 of 2000 contravened Clause 2(a) of Article 258 (supra) in that the Act was not solely passed for 10 the purpose of amending the Constitution but other things like ratification and validating certain past unconstitutional acts and alteration of a judgment of this Court in Constitutional Petition No. 3 of 1999 in contravention of Article 92 of the Constitution. I do not think this court at this stage can go into that. In my view such 15 complaints go to the contents of the Act and hence to its constitutionality. This court has no jurisdiction to decide that issue as ruled by this court.

- Further it was the submission of counsel for the petitioners that 20 Parliament did not enact Act 13 of 2000 in accordance with the requirements of Article 261 and 262 1(a) and (b) of the Constitution. - Article 261 provides as follows:-25

"A bill for an Act of Parliament to amend any provision of the Constitution, other than those referred to in articles 259 and 260 of this Constitution shall not be taken as passed unless it is supported at the second and third reading by

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## 5 votes af not less than two thirds of all members of Parliament"

The petitioners apparently have no problem with the issue of quorum. Their contention is about the failure by Parliament to follow the proper procedure laid down by Article 90(1) and 3(a) and (b) of the Constitution which provides for Committees of Parliament. l0

Article 90 reads inter alia:

- tt 1) Parliament shall appoint standing Committees and other committees necessary for the efficient discharge of its functions - 2\ - (a) - (b) 20 - (3) the functions of standing committees shall include the following: - (a) to discuss and make recommendations on Bills laid before Parliament; - (b) to initiate any, bill within their respective areas of competence; - (c) to assess and evaluate activities of Government and other bodies; - (d) to carry out relevant research in their respective fields; and - (e) to report to Parliament on their functions.

(4)

l0 I5 20 It was vehemently argued by counsel for the petitioners that the period in which the Act was published that is on 28 August, 2000, passed and assented to that is on 1 September, 2000 was too short and could not have allowed committees to fulfil their functions. Some of the amended provisions were not properly initiated and, published. The committees could not have carried out the necessary research within that short period which defeated the spirit of the Constitution which was to allow wide publicity of the bill and adequate research before it became law. The requirement of the 14 days period between the 2nd and third readings was not observed. The amendments to Article 97 and 257 were not initiated by the committees. They were not published but they just found their way into the Act after publication. Mr. Matovu contended that the procedure for amendment laid down by Articles 258-262 of the Constitution cannot be waived under the rules of procedure provided for and made under Article 94 of the Constitution.

Article 94(1) provides :

"subject to the provisions of this constitution, Parliament may make rules to regulate its own procedure including the procedure of its committees."

30 To support his argument counsel cited Constitution Petition No. 7 of 2000 Zachary Olum and Another vs Attornev General.

l5 20 Amendments under Chapter 18 are classified in three categories. The first falls under Article 259 and the second one under Article 260 of the Constitution' Those two categories have their own procedures which do not concern us here in the present petition. The third category is the one relating to general amendmentsoftheConstitutionunderwhichAct13of2000fallsas itwasmadeunderArticle25SoftheConstitution.ltmustbenoted thattheConstitutiondoesnotprovideforaspecialproceduretobe adoptedbyParliamentwhenenactingConstitutionalamendments, other than those enacted under Articles 259 and 260(supra) lt only makes provisions for Parliament to make its own rules under Article 94(1) (supra) lt follows the same procedure applicable to ordinary bills and Acts. lt is, therefore, not correct as submitted by Mr. Matovu that the laid down procedure could not have been waived under the rules of procedure of Parliament during the debate' Once Bill No' l6of2000compliedwiththerequirementsofArticle25S'whichl find it did, the rules of procedure of Parliament applied' t0

25 Furtherinaccordancewithsectionl02oftheEvidenceAct,the burden of proof lies squarely at the door of the petitioners. Section 102, oI the Evidence Act reads:-

.. Theburdenofproofastoanyparticularfactliesonthat personwhowishescourttobelieveinitsexistence,unlessitis providedbyanylawthattheproofofthatfactshalllieonany particular person"

In the present petition apart from relying on the dates of publication, passing and assent, the petitioners did not adduce any evidence to show that Parliament did not comply with the rules of procedure governing Constitutional amendments.

The presumption is: 10

> "Ömnia praesumuntur legitime facta donec probetur in contrarium. All things are presumed to have been legitimately done, until the contrary is proved."

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The onus of proof was on the petitioners to show the contrary. In this petition it can, therefore, be safely assumed that Parliament complied with the correct procedure for Constitutional amendments It was, also, entitled to resort to its own rules to regulate its proceedings during the debate of the Constitutional Amendment Bill No. 16 of 2000.

With regard to publication, gazetting of a Bill is not a Constitutional requirement. Publication is provided - under the Rules of Procedure of Parliament. Rule 91(1) of the Rules provides:-

"All Bills shall be published in the Gazette and shall be accompanied by an explanatory memorandum setting out the policy and principles of the Bill, the defects of the existing law, if any, the remedies proposed to deal with those defects and the necessity for its introduction"

Parliament can, however, waive that requirement under rule 96(1) of its Rules which provides as follows:-

"where the House determines, upon the recommendation of appropriate committee of the House appointed for the purpose, that a particular Bill is of an urgent nature, that Bill may be introduced without publication.

(4) copies of a Bill referred to in sub rule (1) shall be distributed to members and the Bill may be taken through all its stages in a day notwithstanding anything in these Rules"

20 Again apart from the submissions of counsel for the petitioners from the bar, the petitioners did not adduce evidence to prove that Parliament did not follow or rely or indeed should not have relied on the above cited rules of procedure when enacting Act 13 of 2000'

with regard to the insertion of the amendments to Article 97 and 257 2s without publication there is no requirement for publication of intended amendments to the bill in either the constitution or the rules of procedure of Parliament' ln agreement with counsel for the Respondent a Bill can be taken as a working document for Parliament. once the original Bill has been published in accordance 30 with its Rules it can be amended and new amendments can be introduced during the debate without publication. Rule 44 of the

o - Rules of Procedure of Parliament provides inter alia that the following $\mathsf{S}$ motions may be moved without notice: - a) any motion by way of amendment to a question already proposed by the Speaker.

The complaint about the insertion into Act 13 of 2000 of the amendments to Article 97 and of Article 257A without publication has no merit.

Turning to the failure to observe the 14 days period stipulated in 15 Article 262(1) of the Constitution this was not applicable to Bill No.16 of 2000. All that is required for amendments under Articles 258 and 261 of the Constitution is the support at the $2^{nd}$ and $3^{rd}$ readings of not less than two thirds of all the members of Parliament which is not disputed in this petition. There was no requirement for 20 spacing at any stage of Bill No. 16 of 2000.

Sub Rule (5) of Rule 100 of the Rules of Procedure of Parliament is not applicable but even if it was applicable it could be suspended under the same sub rule which provides as follows:-25

> "Subject to these Rules the second reading of the Bill shall not be taken earlier than the fourteenth day after the publication of the Bill in the Gazette unless this sub rule is formally suspended for the purpose"

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Even if this sub rule was applicable to the Bill' no evidence was adduced to show that it was not formally suspended under the same Rules.

l0 Lastlyitwasthecontentionofcounselforthepetitionersthatfailure by the Speaker to comply with Article 262 2(a\ was detrimental to the enactment of Act 13 of 2000. As far as the petitioners' are concemed no certificate was issued by the Speaker to accompany bill No.16 of 2000 for the Assent by the President'

Article 262 (21 provides as follows:

AbillfortheamendmentofthisConstitutionwhichhasbeen passed in accordance with this Chapter shall be assented to by zo the President onlY if:-

- (a) " it is accompanied by a certificate of the Speaker that the provisions of this Chapter have been complied with in relation to it" - (b) "..........."

Iagreewiththesubmissionofcounselfortherespondentthattherewasno evidence to show that the provisions of Article 262 (2)(a) were not compliedwith. Act13of2000hadthePresident'ssignatureaffixed thereto. The affidavits sworn in support of the petition made no mentionoftheabsenceofsuchacertificate. Thehansardwasnot

5 l0 produced in court to show what transpired in Parliament during the debate nor did the petitioners call any person who witnessed or participated in the proceedings or took the Bill for Assent to testify to the contrary. All that there is before court is the address of the counsel for the petitioners from the bar which cannot be relied on because it is not supported by any other cogent evidence'

As the record stands before court I find no evidence to show that when enacting Constitutional Amendment Act No' 13 of 2000 Parliament did not follow the laid down procedure for constitutional amendments. There is no merit in the Petition. The sole ground of the Petition must fail.

Astheunanimousviewexpressedbytheirlordshipsintheir judgments,isthatthispetitionmustbedismissed,itisaccordingly dismissed. Sinceitwasinstitutedinpublicinteresteachpartywill bear its own costs. Constitutional Petition No. 6Karuhanqa Chaa oa and 2 others v Attornev General (Supra) which was staYed o pending the result of this petition must also fail with each party bearing its own costs. 20

25 Dated at Kampala this2grdoay of November,2OOl

l\".1 \' L. E. M. MUKKSA)RKONYOGO DEPUTY CHIEF JUSTICE

### THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT AMPALA

#### CORAM: HON. IION. IION. I]ON. ItON. JUSTICE JUSTICE JUSTICB JUSTICE JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. c. M. KATO, JA. G. M. OKELLO, JA. A. E. N. MPAGI-BAHIGEINE, JA. C. N. B. KITUMBA, JA.

## CONSTITUTION PI'TITION NO.8 OF 2OOO

#### THE T]GANDA LAW SOCIETY I

#### . IUSTIN SEMUYABA PETITIONERS VERSUS THE ATTORNEY GENERAL OF UGANDA ::::::: RESPONDENT 2

#### JT]DGMIJNT OF- C,M. KA-I'O. JA.

I have had the advantage of reading the judgment of my Lord Mukasa-Kikonyogo, DCJ. in draft. I agree with the conclusions reached by her. There is, however, one point upon which I wish to comment briefly 20

The facts of the petition have been ably given by my lord the Deputy ChiefJustice, there is no need to repeat them here. The petition is intended to challenge the validity of Act l3l2000 on the ground that Parliament did not follow the proper procedure when passing it. One of the points raised by the petitioners in support of their complaint is that the President assented to the bill when there was no certificate signed by the Speaker certifuing that Parliament had followed the proper procedure when enacting the Act. Mr. Matow, counsel for the petitioners, argued that before the President could assent to the bill it was necessary for the Speaker to issue a certificate showing that all the procedural requirements had been adhered to. Article 262(2)(a) upon which this argument was founded reads as follows:

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$"262(2)(a)$ A bill for the amendment of this Constitution which has been passed in accordance with this Chapter shall be assented to by the President if only it is accompanied by a certificate of the Speaker that the provisions of this Chapter have been complied with in relation to it."

Mr. Bireije, Commissioner for Civil Litigation, who appeared for the respondent, argued that the certificate from the Speaker was not fatal to the validity of the Act. I agree with him. It is my opinion that the above provision was intended to avoid the President signing for something not legally passed by the Parliament but it was not the intention of the legislators to render the law passed by Parliament void. The issuance of a certificate is a mere procedural and administrative requirement which does not go to the root of the law making process. Since the President assented to the Act, in the absence of evidence to the contrary, one is compelled to conclude that before he did so he was satisfied that all the formalities had been carried out. My holding on this point is based on the legal doctrine which states that all things are presumed to have been performed with all due formalities until it is proved to the contrary. (Omnia praesumuntur rite et solemniter esse The burden was upon the acta donec probetur in contrarium). petitioners to adduce evidence to prove that the act complained of was done without the compliance with the required procedure. That burden has not been discharged.

I would dismiss this petition with an order that each party bears his own costs.

Dated at Kampala this 23.1d. day of November 2001.

**JUSTICE OF APPEAL**

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

#### CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. MR. JUSTICE C. M. KATO, JA HON. MR. JUSTICE G. M. OKELLO, JA HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

#### **CONSTITUTION PETITION NO. 8 OF 2000**

#### BETWEEN

1. THE UGANDA LAW SOCIETY : :::::::::::::::::::::::::::::::::: 2 JUSTIN SEMUYABA

#### AND

#### THE ATTORNEY GENERAL OF UGANDA :::::::::::::::::::::::::::::::::::

#### JUDGMENT OF G. M. OKELLO, JA

$\ldots \quad \ldots$

This is one of the three Constitutional Petitions, brought to challenge the constitutionality of the Constitutional Amendment Act No. 13 of 2000. The other two are:-

- (1) Constitutional Petition No. 6 of 2000, Karuhanga Chapaa and 2 others vs The Attorney General, - (2) Constitutional Petition No. 7 of 2000 Paul K. Ssemogerere and 2 others vs The Attorney General.

Counsel for the parties to Constitutional Petitions Nos. 6 and 8 agreed that petition No. 8 of 2000 be heard as a test case. Upon that agreement, the hearing of Petition No. $6/2000$ was staved pending the decision in petition No. 8/2000. Counsel for the parties to petition No. $7/2000$ however, were not present when that decision was taken and therefore, were not party to the agreement.

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This petition, like the others, was brought under articles 3 (4), and 137 (1) and (3) of the Constitution of the Republic of Uganda, 1995 $\frac{1}{2}$ and The Modifications to The Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, 1996 (Legal Notice No. 4 of 1996). In a ruling on a preliminary objection that was taken when this petition was called for hearing, this court limited the issue for determination here to only one. It is whether followed the procedure provided for under the Parliament Constitution in enacting the Constitutional Amendment Act No. 13 of 2000.

It is important to note from the outset that article $2(1)$ of the Constitution provides that,

# "this constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda."

This provision states the constitutional supremacy over all authorities and persons in Uganda. That means that Parliament is subject to the constitution and therefore, must in the exercise of its functions comply with all relevant constitutional provisions. Any deviation would be unconstitutional. Clause 2 of article 2

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emphasises the constitutronal supremac\. over all other lau.s in Uganda. It provides:-

'If ,-y other las or custom is inconsistent rith ,,,y of the provisions of this constitution, the coastitution shall preva.il, aad that other lasr or custom s[alt, to that ertent of inco-sisteucy, be void..

with the above constitutional principles in mind. I had the chance to read in draft the judgment of the learned Deputl' chief Justice, Lad'Justice Makasa-Kikon'ogo and I agree u-ith her conclusion. I shall therefore. make onlv ven feq. remarks of mv oqn.

Mr. John Matovu- learned counser for the peritioner. assisted b1 Mr. Kabega. complained firstl1 . that parliament did not compl\_r' v,rth the provision of article 258 of the constiturion u'hen enacting the impugned Act No. 13 of 2o00 He asserted that though artrcle 25g (1) restncts the constitutional amendment to addition. variation or repeal. Parliament w-ent be'ond that restriction b1- rnserting ne\f,, articles 9o and 257A. Secondh'. that though article 2sg (zl requires that the sole purpose of the Bill should be to amend the constitution. Parliament entertained Bill No. l6 of 2000 u-hose sole purpose u'as not oniv to amend the constitution but also included as one of its purposes ratification of past acts as shou'n in its preamble.

on the other hand. Mr. Bene.1e. commissioner for civiJ Litigation, contended that Parliament complied n'ith the provision of article

258 of the Constitution since Act 13 of 2000 did not go beyond the restriction imposed by article $258$ (1). It amended the Constitution $\rm bv$ addition, variation, repeal and replacement which are permissible under the article.

On the purpose of the Bill, Mr. Bireije submitted that the sole purpose of the Bill was to amend the Constitution. He argued that the ratification referred to in the preamble was merely the reason for the addition.

I do not with respect, agree with Mr. Matovu's complaint that Parliament went beyond its mandate given by article 258 (1) when it inserted new articles 90 and 257A. The repeal of the old article 90 and replacing it by a new one is an amendment by variation which is permissible under article 258 (1). Likewise insertion of article 257A is an amendment by addition which is also permissible under article 258 (1).

Article 257 (9) of the Constitution provides:-

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"reference to the amendment of any of the provisions of this Constitution or any Act of Parliament include reference to the alteration, modification or re-enactment, with or without amendment or modification of that provision, the suspension or repeal of that provision and

$\overline{4}$ # tJre rnaking of a dilferent provision in place of tlrat provision.'

The repeal and replacement and or insertion made b1- Parliament when enacting the Constitution (Amendment) Act No. i3 of 20OO, therefore, fell uithin the above provrsion. Parliament did not thus exceed its mandate.

The learned counsel further contended that the preamble of Bill No. 16 of 2000 sho'\*r's that its sole purpose \{'as not to amend the Constitution but also:

(a) to make provision in relation to quorum,

- (b) to make provision to recognise the role of the committee of the whole House in passing Bills and - to in sert a neu' article to ratift certain past act reiating to procedure. (c)

In m1' 'u-ieu.. the above are reasons for the proposed amendment. Thel' are not purposes of the Bill. The purpose of the Bill remains solelv to amend the Constitution to achieve those objectives. Anicle 258 (21 does not restrict on objectives of an]' proposed amendment. Parliament, therefore, did not violate article 258 of the Constitution when passing the Constitution (Amendment) Act No. 13 of 2000. Anotleer complaint raised b-r. counsel for the petitioners w'as that Parliament did not compll' u'ith article 26 1 and 262 (ll of the

Constitution. Article 26 1 provides that a Bill seeking to amend articles other than those referred to in articles 259 and 260 of the constitution must be supported at its 2"d and 3'd readings bv votes of not less than t'.r'o thirds of all members of Parliament. The Bill u,-hich gave nse to Act 13 of 20OO nou. the subject of this petition, sought to amend articles 88.89 and 90. Anrcle 26 I applies to these articles because thel' are articles, other than those referred to in articles 259 and 260. Nou'. u'hether the Bill lvvas supported in its second and thrrd readings as required b1' article 261 or not is a question of fact to be established bv evidence. The petitioner has the burden to prove this fact (Sectron 1O2 Evrdence Act). There is. hou''ever. no evidence to sho\$ that article 26 I u.as not complied uith. This gr-ound of complaint u'ould. therefore. fail.

Article 262 l1) provides for the spacing of the second and third readings referred to in articles 259 and 260 b1 at least 14 sitting da1's of Parliament. Mr. Matovu complained that the spacing requirement \{'as not complied u-ith in this case I find no ment rn this complaint. Bill No. 16 of 2OOO sought to amend articles 88. 89 and 90, u'hich are not included on the list of the articles referred to in articles 259 and 260 to '\*-hich article 262 (11 applies. Therefore, article 262 (l) u-as not applicable to the Bill u'hich gave rise to the impugned Act 13 of 2O00.

It is true Rules of that article 94 empou'ers Parliament Procedure. Such Rules ho'\*'ever, to make its orr'n are subject to

constitutional pror,rsions in uieu' of the constitutional supremacv referred in article 2 (2) above. In fact. rule 96 (2) of the Rules of Procedure of the 6'h Parliament of Uganda empow-ered parliament to rush an urgent Bill through all its stages even in a dar. not,\*ithstanding anr-thing in the Rules. As stated earlier in this judgment, even such rules as this one, are subject to constitutional provisions.

Mr. Matovu further complained that the amendment to article 97 and the insertion of a neu' article 2574, u-ere effected u-hen the1. were not published in the Gazette. He submitted that. that offended article 90 (3) (a) of the Constitution since the amendments \{'ere not discussed b-r the relevant standing committee as the\ should have.

Mr. Bireije conceded that articles 97 and 2574. were passed uithout being published as rhev u'ere not on the origrnall-r- gazetted Bill. He submitted however. that the omission \r.as not fatal since a Bill is a u'orking document for Parliament u'hich can be amended in the course of debating it before it is passed.

Article 90 (3) (a) pro'u"ides that the functions of standing committee shall include amongst others.

## (af 'to discuss.nd oa&e recorurttetldaHoa q1 atr f,itt5 laid before Parlia"' ent.'

Under section lO2 of the Evideace Act, the burden to prove an-\' particular fact lies on that person u'ho \*'ishes the court to believe in its existence, unless it is provided b1' an1' Iau- that the proof of that

fact shall lie on any particular person. In the instant case, the petitioner who wishes this court to believe that the Bill was not discussed by standing committee is under a duty to prove that fact. No such evidence was given. Therefore, this aspect of complaint would also fail.

In the result, I would dismiss the petition and order that each party bears his own costs since this petition was instituted in public interest.

Dated at Kampala this 23rd day of Divember 1 2001.

G. M. Okello JUSTICE OF APPEAL.

## THE REPUBLIC OF UGANDA

$\cdots \cdots$

## IN THE CONSTITUTIONAL COURT OF UGANDA

#### **AT KAMPALA**

## **CONSTITUTIONAL PETITION NO.8 OF 2000**

HON. JUSTICE L. E. M MUKASA-KIKONYOGO, DCJ. CORAM: HON. JUSTICE C. M. KATO, JA. HON. JUSTICE G. M. OKELLO, J. A. HON. JUSTICE A. E. MPAGI-BAHIGEINE, J. A. HON. JUSTICE C. N. B. KITUMBA, J. A.

| 1. | THE UGANDA LAW SOCIETY | | | |-----------------------------------------|------------------------|--------|-------------| | $\overline{2}$ . | JUSTIN SEMUYABA | | PETITIONERS | | | | VERSUS | | | THE ATTORNEY GENERAL OF UGANDA :::::::: | | | RESPONDENT |

# **JUDGMENT OF A. E. M. BAHIGEINE, JA.**

I read in draft the judgment by the Hon. The Deputy Chief Justice.

I agree with her conclusion that the petition should fail and have nothing further to add.

Dated at Kampala this $\frac{g}{g}$

A. E. M. Bahigeine **JUSTICE OF APPEAL**

day of November 2001

#### THE REPUBLIC OF UGANDA

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

CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. MR. JUSTICE C. M. KATO, JA. HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

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#### **CONSTITUTIONAL PETITION NO. 8 OF 2000**

1. THE UGANDA LAW SOCIETY $2.$ JUSTIN SEMUYABA }:::::::::::::::::::::::::PETITIONERS

#### -VERSUS-

#### THE ATTORNEY GENERAL OF UGANDA::::::::::::::::::RESPONDENT

$20$

#### JUDGMENT OF C. N. B. KITUMBA, JA.

I have had the advantage of reading in draft the judgment of my Lord Mukasa-Kikonyogo, DCJ. in which she sets out the facts leading to this petition. I will therefore not repeat them. I also agree with her that the petition should be dismissed. I wish, however, to go briefly over some of the arguments raised by counsel in this petition, regarding the issue which was framed at the hearing of the petition, which is:-

"Whether Parliament followed the proper procedure when enacting Act 13 of 2000 known as "The Constitution (Amendment) Act"

Mr. Matovu, learned counsel for the petitioners, contended that Parliament did not follow the provisions of article 258 of the Constitution. Learned counsel submitted that according to article 258(1) Parliament can amend the Constitution by way of *addition*, *variation* or

$\mathbf{I}$

repeal of any Provision of the Constitution' Counsel argued that Parliament exceeded its powers because it was stated in the preamble that the Act was to ratify certain acts relating to procedure, and to insert Article 257 A in the Constitution.

Mr. Bireile. learned counsel for the respondent, contended that Parliament passed Act 13 of 2000 with strict compliance to the provisions of the Constitution. He argued that the preamble merely explained what was contained in the Act and inserting article 257A was an addition to the Constitution. He argued that this was within the meaning of amendment as provided by Article 257(9) of the Constitu tion.

I am unable to aPPreciate Mr. Matovu's argument regarding the preamble. A preamble is not part of a statute. Osborn's Concise Law Dictionary 8t Edition page 256 gives the following definition of preamble:

## "The recitals set out at the beginning of a statute showing the reasons for the Act"

Counsel for the petitioners contended that Act 13 of 2000 was passed in contravention of the provisions of article 261 of the Constitution. The Constitution (Amendment) Bill, 2000 (No.16/2000) did not go through the committee stage provided by article 90 of the Constitution' Counsel argued that the bill was published on 28th August, 2000 and was passed and assented to on 1st September, 2000. Leamed counsel submitted that though according to article 94 of the Constitution, Parliament can make

rules to regulate its procedure, such rules must be subject to the Constitution. Parliament is not empowered to make rules which vary the operation of article 261 of the Constitution.

With due respect to counsel, this argument is not tenable. When Parliament makes rules of procedure they are of general application in that they apply whether Parliament is making Constitutional amendments or enacting other [aws. According to Rule 96(1) of the Rules of Procedure of Parliament when a Bill is of an urgent nature, it may be taken through all its stages within a day. The Petitioners had the duty to prove their case. However, apart from annextures "A" and "8" to the affidavit of Ayena Odongo which shows that the bill was published on 28th August 2000 and the act was passed and assented to on 1st September 2000, there is no evidence to prove that the Parliament did not make use of Rule 96(1) when enacting The Constitution (Amendment) Act.

Counsel for the petitioners has also complained that article 262(2)(a) of the Constitution which requires a bill amending the Constitution, when being sent to the President for assent, to be accompanied by a certificate of the Speaker certifying that the provisions of the Constitution have been complied with was not followed.

The President's signature is affixed to Act 13 of 2000 and the petitioners have not adduced evidence to prove that the certificate was not attached. It is assumed, therefore, that the provisions of article 262 (2) (a) were complied with.

Article 257(9) of the Constitution defines amendment to the Constitution as follows:

"(9) In this Constitution, references to the amendment of any of the provisions of this Constitution or any Act or Parliament include references to the alteration, modification or re-enactment, with or without amendment or modification of that provision, the suspension or repeal of that provision and the making of a different provision in place of that provision."

I am of the considered view that The Constitution (Amendment) Act did exactly what is provided in article 257(9). I am satisfied on the evidence available that when passing The Constitution (Amendment) Act, Parliament followed the Constitutional procedure which is provided in the Constitution.

I would dismiss the petition and I would order that each party bears its own costs.

r€\ Dated at Kampala this..c.23 ...day of .s-l- ix).r....2001

Cr- c. N. c-^. .5\ B. KITUMB JUSTICE OF APPEAL

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