Keith Busingye, Selected Constitutional law case notes.

Keith Busingye law, selected common constitutional law case summaries.

COSNTITUTIONAL LAW CASES

Ssemogerere and others vs.AG

•      Paul K. S. and Zachary Olum petitioned the constitutional court seeking a declaration that the referendum and other provisions Act 1999 was null and void on the ground that parliament had passed it without a quorum. The petitioners appealed to the Supreme Court which allowed the appeal and held that the constitutional court had jurisdiction to decide whether or not the Referendum and other provisions Act was passed in the accordance with the provisions of the constitution. The petition was referred back to the constitutional court for hearing. The constitutional court heard the petition and declared null and void the Referendum and Provisions Act which had been passed without the requisite quorum and in disregard of the constitutional provisions.

•      As a result of the above judgment parliament passed the first amendment to the constitution namely Constitutional [Amendment] Act no.13 of 2003. The petitioners filed a constitutional petition against the AG challenging inter alia the constitutionality of the constitutional [Amendment] Act. The constitutional court by a majority declared that it had no jurisdiction to interpret one provision of the constitution against another or others. It stated that could only hear the manner as to whether there had been compliance with the procedural requirements for the amendment of the constitution.

Paul K Ssemogerere

•      The constitutional court held that the Act had been passed in accordance with the constitutional provisions and it had not amended the articles of the constitution.

•      HELD; in amending the articles of the constitution parliament had failed to comply with the provisions of the constitution in that the bill effecting their amendments should have been accompanied by a certificate of the speaker of parliament intending that the bill had complied with provisions before presidential assent.

•      The Act was unconstitutional and should be struck off.

As regards interpretation of the constitution

•      The entire constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountacy of the written constitution. The third principle is that the words of the constitution prevail over all unwritten conventions, precedents and practices. I think that it is now also widely accepted that the court should now not be swayed by the consideration of policy and propriety while interpreting the provisions of the constitution.

Major Gen. Tinyefuza vs. AG

•      The principles which govern the construction of the statutes also apply to the construction of the constitutional provisions. And also the widest construction possible in its context should be given according to the ordinary meaning of the words used and each general word should be given to extend to all the ancillary and subsidiary matters.

•      In certain contexts a liberal interpretation of the constitutional provisions may be called for  liberal interpretation should be unfettered with technicalities because while the language of the constitution dose not change, the changing circumstances of the progressive society for which it was designed may give rise to new and fuller import to its meaning

•      A constitutional provision containing a fundamental right is a permanent provision intended to cater for all time to come and therefore while interpreting such a provision, the approach of the court should be dynamic, progressive and liberal or flexible, keeping in view ideals of the people, socio-economic and politico-cultural values so as to extend the benefit of the same to the maximum possible.

•      It is the duty of the court to enforce the paramount commands of the constitution [supremacy of the constitution]. The current thrust of highly persuasive opinions from the courts the common wealth to apply a generous and purposive construction of the constitution.

AG vs. Salvatori Abuki

•      The respondents were charged and convicted of practicing witchcraft under the witchcraft Act.

•      In this case the court could only make a finding that section 7 of the witchcraft Act is void to the extent that it authorizes the making of the Exclusion order excluding a person from his or her home, which would be a violation of a fundamental right to the petitioner.

LIMITATION OR RESTRICTION ON THE RIGHTS AND FREEDOMS

•      For a restriction to be reasonably justifiable in a democratic society, the restriction must be reasonable. There various elements that the courts will have to take into consideration and State v. Makwangyane and another (1995)6BCLR; the nature of the right that is limited, its importance to an open and democratic society based on freedom and equality, the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary and whether the desired ends could reasonably be achieved through other less damaging means

Dr. James Rwanyarare & Another v Attorney General

•      The petitioners questioned the legitimacy of the parliament in accordance with the constitution of Uganda of 1995 (article 271). The main issues were; whether court had jurisdiction to inquire into the motive of parliament in passing an Act and whether sections (2) and (29) of the Referendum (Political Systems) Act, contravene Article 79(1) and (3) of the constitution of Uganda because of a retrospective effect on the Act. They sought declarations for the above articles to be declared null and void.

•      It was held that court had no authority to inquire into legitimacy of parliament since it was essentially political and not justifiable by law.

•      This decision by court justified the fact that parliament has the powers to enact any law as provided in Article 79(1) of the constitution.    

Magna Carter

•      This was a statement of grievances the people had against the king and his government and the remedies they sought from him. Its contents included liberty of the individual, principle that no man should be punished except by judgment of his equals and in accordance with the law of the land.

•      Having been established as fair and justifiable the charter came to be recognized as part of the British constitution.

•      In 1688 it came to be known as the Bill of Rights   

Shah v Attorney General

•      Shah brought a case against government of Uganda for a payment of debt which had been incurred by the defecting Buganda agreement.

•      He won his action in court but parliament enacted a law retrospective in nature and burying court actions similar to and including Shah’s debt where minister had not consented to the contract and the action of the subject matter of the action.

•      Court held on substantive ground that the law was consistent with the constitution therefore void