[1980] UGCA 2

$-1160$ 尧 & ODOKI, J. .- ASTHANA, WAMBUZI C **Constitutional** Case No.

| | ANDREW LUTAKOME KAYIRA ) | Course Spiller Mar. | |------|--------------------------|------------------------------------------------------------------------------| | 2. | PAULO SEMOGERERE | PLAINTIFFS. | | | | | | | | EDWARD RUGUMAYO = Chairman of the National Consultative )<br>DEFE<br>Council | | 2. | OMWONY OJCK | = Secretary of the National Consultative)<br>$\sqrt{N}$ DANTS<br>Council. | | $3-$ | $DR. F. E.$ | SEMPEBWA & 8 OTHERS. |

**BETWEEN**

## JUDGMENT OF MANYINDO, J.

In March, 1979 at the height of the liberation war to unseat the regime of dictator Amin, several groups of mostly exiled Ugandans met at Moshi, Tanzania, to set up an interim administration to replace the Amin regime when it finally fell.

At that neeting popularly known as the Moshi Unity Conference, the Uganda National Liberation Front (U. N. L. F.) was born. It embodied all the groups and individuals that participated in that conference.

The U. M. L. F. has three organs namely, the Delegates Conference, the National Executive Committee (N. E. C.) and the National Consultative Council (N. C. C.). It also has functional Commissions such as the Military Commission. At Moshi Professor Lule was elected Chairman of the National Executive Committee of the U. N. L. F.

After the fall of the military government of Mapril, 1979, the U. N. L. F. assumed the powers of the government of Uganda headed $\mathcal{L} = \mathcal{L}^{\mathcal{L}} = \mathcal{L}$ by Professor Lule 28 President of Uganda.

Under Professor Lule's first Proclamation - Legal Notice No. 1 of 1979 published on 8%5/79 - all legislative powers were vested. in the National Consultative Council which consisted only of 30 original members. In the result the N. C. C. became the legislature

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of this country as well as a political organ of the U. N. J. F.

On 20th June, 1979 the N. C. C. held a meeting at State House, $\frac{1}{2}$ $\frac{1}{2}$ Professor Jule as Chairman of N. E. C. was moved and passed by 18 votes against 14. The Professor was voted out of office because a had not, despite requests by N. C. C., submitted to it for its appro and ratification his ministerial and political appointments $\sim$ $\sim$ 3

he had so far made. He was removed under the provisions of the $\cdots \quad \cdots \quad \cdots \quad \cdots$ U. N. L. F. constitution and the Minutes of the Moshi Unity Conference These facts are not disputed.

The two plaintiffs, who are original members of the NCC,

brought this matter by way of a representative action against the Chairman and Secretary of the NCC as first and second defendants respectiviely, and representing all the other members of the NCC seeking the following declarations:-

$(1)$ That the supreme law of Uganda is the Constitution of

the Republic of Uganda of 1967 and not the Constitution of the UNLF and/or the Minutes of the Moshi Unity Conference. (ii) That powers to make miniscerial appointments, appointments to the Public Service of the Uganda Government vest solely

in the President and that the NCC has no valid powers to $\tilde{\cdot}$ ratify and approve such appointments.

(iii) That the procedure followed in removing the Chairman of the National Executive Committee of the UNLF and thus

as President of the Republic of Uganda was unconstitutional.

(iv) That the National Consultative Council has no powers to remove the President from his office.

(v) That when deciding upon matters of national interest the

National Connultative Council must sit in the Legislature

and be governed and guided by the Constitution of Uganda. The first plaintiff (Kayira) who, we were told, presently resides outside Uganda, did not appear before us. The first and second defendants and seventeen other original NCC members were $\mathcal{L}(\mathcal{L}) = \mathcal{L}(\mathcal{L})$ $\sqrt{3}$ .

represented by the Attorney General. None of these defendants appeared . Court.

Sight other NCC embers; Professor Kabwegyere, H. Makmot Yonasani Kanyomozi, Osindek /ere also joined as defendants in their own right at their request. Professor Sempebwa was at his instance joined as third defendant ider Order ¹ rule 8 (2) of the Civil Procedure Dules. *1* angor-, 3. Kamuntu, Dr. luwuliza-Kirunda, I. Komakech and Dennis Scou

However, only Sr. Kiruhda and Osindek V/angor took part in some of he proceedings. They di'sappeardd from Court altogether before they even presented their defence. In view of the importance of this case with all the seriousness it deserves. Por this very reason I v/ould also have expected the Attorney General to come in as defendant in his own right. case, I would have expected the defendants to approach the trial of the

It is noteworthy that when Professor Kabwegyere and seven others mentioned above sought leave to be joined as defendants, their application was filed and argued by the Attorney General on the ground that the suit raised matters of public interest and importance. S-crangely enough after leave had been granted to them these defendants decidedtto longer represented them. condxict their defence personally so hhat the Attorney General no

V?hen this suit first came up for hearing the Principal State Attorney, Mr. Ogwal, raised a preliminary point of objection. that the suit ought to be dismissed without trial because it had been overtaken by events. We overruled the objection for the reasons stated by the learned Chief Justioe in his judgment which I had the benefit to read in draft. I fully associate myself with those reasons the reasons given in answer to the preliminary objection for an adjournment to enable Kirn seek further i.nd better particulars in respect of paragraph 2 of the written statement of defence of zhe third- defendant. application made on 51/7/80 by Dr. Byanugisha counsel for the plaintiffs as well-I as made by State Attorney Byamugishu and the reasons for refusing an it was

/4

The parties were unable to agree on the issues for determination by this court. As a result each party framed its own issues. These issues have been set out in the judgment of the learned Onies Justice. I do not propose to deal with them separately because the that really matter have been incorporated in the declarations sought

Before I deal with these declarations, I wish to take up a poth that was made by the defence counsels. They submitted that since the NCC had sat at State House, Entebbe on 20/6/79 as a legislature when they voted Professor Lule out of office (according to the evidence 🤯 the third defendant), the members were immune from legal proceedings. They relied on section 3 of the National Assembly (Powers and Priviled Act (Cap. 249) which provides:-

"3. No Civil or criminal proceedings may be instituted against any member for words spoken before, or written in a report to, the National Assembly or to a Committee, or by reason of any matter or thing brought by him therein by petition, bill, metion or otherwise. the

On the other hand there is/evidence of the second plaintiff (Mr. Semogerere) to the effect that on that occasion the NCC sat as a political organ of the UNLF and that Ministers and Deputy Ministers were excluded from that meeting as they sat in WCC only when it sat as a legislature, as ex-officio members.

I am inclined to accept the evidence of Mr. Semogerere on the matter for four reasons. Firstly, the NCC sat to consider the only one item on the agenda-the motion requiring President Lule to submit to the Council all his Ministerial and political appointments he had so far made for its consideration and approval. There was no legislation before it. It is significant that the MCC did not consider any legislation such as Bills until August, 1979.

Secondly, Ministers and Deputy Ministers who were not original members of the NCC were excluded from the meeting because they were only ex-officio members of the Council in its role of

$\sqrt{5}$

a legislature. Ministers and Deputy Ministers have.always been legislaturtr-in this country.

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tive Council sat at State House Entebbe bn the 19th and 20th day of June. :i 1979 it did so as an organ of the Uganda National Liberation ?ront Thirdly, in the written statement of defence filed by the Attorney General, it is admitted (paragraph 7) that "when the National Consulca-

fourthly, it is the evidence of both Mr.- Uemogerere and. Professor Dule in his capacity as Chairman of NEC and not as President of Uganda and that he.was removed under the provisions of the UNL? Constitution. that the NCC sat ferrod to above. legislature to consider party matters, Had the. NCC sat as a legislature, am of the view that the members would have been, immune It seems clear to me from legal proceedings in view of the clear provisions of Lb\w reas a political organ of its party (the UNLP) under their party constitution to consider alleged short-Hadas Sempebwa that the.vote of no confidence was directed against Professor comings of their party leader. •"If..could not have b.en sitting as a

I will now turn to the declarations sought. The wording of the first declaration sought is unfortunate. This court is being asked to declare that the constitution of the Republic of Uganda of 1967 is supreme over the UNL? Constitution and the Minut-s of the Mcshi Unity Conference. ''Supreme" is a word of comparison. So this court is being asked to compare these three documents. But the Uiiij? Constitution and the Noshi Minutes have never been incorporated in our municipal law. How then can this court compare them with the country's constitution?

Article ¹ of the Uganda Constitution, 1967 clearly states that that Constitution is the supreme law cf this country. I would have people who tend to confuse the. two constitutions, declined to declare the obvious but since there arc, apparently. I am prepared to declare that the Uganda Constitution of 1967 is exactly what it states the supreme law of this country⁴

this. ?resii"\*' dent of Uganda to appoint Ministers and Deputy Ministers from among the members of the National Assembly. Regarding the second declaration sought - that the power to - j Ministerial appointments and appointments to the public service ve^/J (or rather vested) solely in the President and the NCC has no right approve and ratify such appointments, the position seems to me to cq Article 53 of the Constitution of Uganda empowers the

That article is contained in chapter iv of the Constitution which chapter was suspended by President Lule on 8/5/79 (section ¹ of legal Notice ¹ of 1-979). Legal Notice No.2 of 1979 published on 30/5/80 and purporting to restore chapter iv pf the Constitution is invalid because, having under legal notice Ho.1. of 1979 vested all legislative powers in the NCC, President Lule had no power to make laws except in exceptional circumstances by ordinance under Article 64 of the Constitution when there is or if there is one, it is not in session. Otherwise under Article ⁶³ of the Constitution Parliament has the sole po er to make the laws of this country. There were no exceptional circumstances in this the NCC was operational as the time, no National Assembly case and in any case it seems

But section ⁵ of Legal Notice No. ¹ of 1979 empowered the President to appoint cabinet of Ministers, There is no requirement for such appointments to be approved by the NCC or anyone else. Sven Ministers and Deputy Ministers without the approval of anyone. in my opinion President Dole could hava also rightly made appointments under Decree No. 5 of 1971• Amin's Decree Ho. ⁵ of 1971 which was not repealed until 1l/l/80 (by Statite No. 2 of 1980) empowered the President to appoint his

As it is, there wea; no legal requirement for him to submit his appointments to the NCC for its approval. It is disputed whether the -impoiStarice¹ -since- Ijiavc hold- that Ooiisti'futfdh was required to do so under the UNL> Constitution and Moshi Minutes, but this is of no

/7

submit his appointments ^j President'^s powers po~ by requiring him to *•* the NCC for its approval\*.

No evidence was led by uhe plaintiffs to establish their claim at the power to\ make appointments to -the civil service vested in ,e President. restricted to Ministerial and poli- .cal appointments. There is I **would** issue the declaration that the to appoint **Ministers** vested solely in the ^resident and the NCC Professor Bule from the **chairmanship** of the National **Executive** Committee jf the UNIT was unconstitutional - is rather interesting. Since the was sitting as an organ of the UNLP the constitution of Uganda Their action could not be unconstitutional as against the constitution of Uganda. Clearly they proceeded under 3he UN-u? cons': tution to make a -political decision. JiCO is irrelevant here. **ower** ad no and has no **powers** to approve and or ratif?/ such appointments-. ; The third declaration sought - that the procedure used to remove no mention of .political appointments in And so ie declaration sought.- The evidence was

It would be improper for this court to question the procedure that succeeded that of Professor I»ule which could lead see Uganda v. Commissioner of Prisons :exparte Matovu (1966) E. A 511 and luther v. Borden (l849) ¹ How 1. . Accordingly I would refrain from issuing the declaration sought. : government • tc serious consequences: i **I** •they followed as this would bring into question the legality of the

The fourth declaration sought, that the NCC has no powers to remove the President from his office, is in my view a bit too wide: As I pointed out earlier on, the NCC has two rales; that of a legislature and that of an organ of the UNLi1. Its legislative role is Article 30 of the constitution which solely to make laws. In that capacity the NCC cannot in my opinion remove a President from office.

/8

empowers the Mational Assembly to pass a vote of no confidence in the govdrnment whereby the President has to resign was suspended. by Legal Notice No. 1 of 1979 which has since been revoked by Legal Notice No. 5 of 1980.

Service China 1 I think it would be unrealistic for this court to issue a a declaration as to what the NCC can and cannot do as a political organ of the UNLF. In the result I would issue the following<br>declaration - the National Consultative Council had and has no $power$ . as a legislature, to remove the President of U_janda from his office.

トニ With regard to the fifth and last declaration - that when deciding matters of National interest the NCC must sit as a legislature and be governed and guided by the Constitution of Uganda-I find this preposition hard to comprehend. As the NCC's legistative role is confined to merely making laws, it follows that as a legislature it cannot decide on matters of National inverest if they are not for the purpose of making legislation. I do not see what purpose this declaration could possibly serve. Accordingly I would not issue it.

In my judgment this, is a proper case where the parties should meet their own cost of the suit.

DATED AT KAMPALA this 21st day of October, 1980.

S. T. Manyindo. JUDGE,

## IN THE COURT OF AFFEAL FOR UGANDA

### AT KAMPALA

(Coram: Wambuzi, C. J., Lubogo, J. A., Manyindo, J., Asthana, J. & Odoki, J.)

#### CONSTITUTIONAL CASE NO. 1 OF 1979 $\mathcal{O} = \mathcal{O}(\mathcal{O}(\mathcal{O}))$

BETWEEN

| ANDREW LUTAKOME KAYIRA ) | | | |--------------------------|----------|--| | PAUL SEMOGERERE | $\gamma$ | |

| | | | | | $\mathcal{A} \cup \mathcal{A} \cup \mathcal{A}$ | |----------------|-------------|--|----------------------------------|--|-------------------------------------------------------------| | 1. | | | EDWARD RUGUMAYO | | - Chairman of the National ) | | | | | | | Consultative Council ) | | $\overline{2}$ | OMMONY OJOK | | | | Secretary of the National) DEFENDANTS Consultative Council | | | | | 5. DR. F. B. SEMPEEWA & S OTHERS | | |

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# JUDGHENT OF B. B. ASTHANA, Judge

This suit is filed by plaintiffs Andrew Luvakome Kayira and Dr. Paul Semogerere against the defendants Edward Rugumayo and Cmwony-Ojok who at the material time were the Chairman and Secretary, respectively, of the National Consultative Council. The National Consultative Council (hereafter referred to as the N. C. C.) consisted of 30 original members at the relevant time. The said members of the N. C. C. were appointed on or about 25th $\,$ March, 1979 at a Unity Conference held at Moshi, Tanzania. This Unity Conference at Moshi was attended by various groups of Ugandans having in the main as its objective the liberation of the country from the tyrannical regime of Idi Amin. For whe above objective the Uganda National Liberation Front was formed. For brevity it will hereinafter be referred to as the UNLF.

Evidence shows $\cdots$ /2

Evidence shows that the NCC was one of che organs of the UNLp^ Other organs were the National Executive Committee, the Military -r. Political and diplomatic Commission and finance and Administrative ⁱ Commission. '

This suit arises from the events which led to the removal of Prof.. Y. K. Lule from the office of the Chairman of the National Executive Committee and hence from the office of the President of. the Republic of Uganda. Prof. Y. K. Lule was a., pointed at Moshi Unity Conference the Chairman of the National Executive Committee NEC). The two plaintiffs were among The NCC had two functions. 1 One was legislative function, to make laws for Uganda, and the organ of the UNLF to discuss and formulate policies for She Nation. According no dr, Somogerere the NCC as an organ of the UNL? was analogous to a political party. The legislative powers were acquired by NCC on 11,4.79 by virtue of Legal Notice No. ¹ of 1979. Under the said Legal Notice the UHj.p assumed the powers of the Government of the Republic of Uganda headed by Prof, Y. K. Lule on 11.4.79. prerogatives, powers, functions and ex^fipiions formerly⁷ e'nyoy^d the Constitution were vested in the President with effect from 1-1.4-79' *f* ^t oth^r was as an (hereinafter referred to as '**w** .^bthe original JO members of the NCC. or exercised by the former President of the Republic of Uganda under AH the titles, privileges,

'

Clause ⁵ /

Clause 5 of Legal Notice No,1 of 1979 prescribes -

There\* shall be a cabinet of Ministers appointed by the President which shall advise the President in the exercise of his executive functions," "5.

On or about the 9th June 1979 the NCC met when a notion was moved requiring Prof. Y. K. Lule to submit to NCC and political appointments made, by him as 'President for\* NGC' ^s ratification and approval. a list of Ministerial

The debate was adjourned to 12th June, 1979 and finally to 19th June. 1979. On 19.6.79 the NCC net at the State House, Entebbe when Prof. Y, K. Lule was present. The only item on the agenda for debate on 19.6.79 and 20.6.79 was that Prof. Y, K\* Lule do submit a list of ministerial and political appointments made by him to i;CC for ratification, and approval. It is not in dispute that no sucn list was supplied by President Prof. Y, K. Lule. At this motion of no confidence in the Chairman of NEC, put to vote by secret ballot and out of 52 persons present at the meeting 18 voted in favour of the motion and 14 against the me ^~ ¹ . Thus Prof. Y. K. Lule ceased to be the Chairman of EEC and it appears as the President of the Republic of Uganda, This suit arises out of those events on 19th/20th June, 1979 at State House Entebbe, and it v/as filed under Order ¹ Rule 8 of the Civil juncture and without any prior notice one Paulo -angola moved a The motion was

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*-3* - Procedure Aules. Deave to file this suit as a representative su was obtained from court. Nyamychoncho, J. A. ordered that all the original members of the NCC be served personally with the notice of institution of the suit. Personal service of the notice having been ineffective the notice was advertised in the English and $\log^3$ languages papers. As a result of and in response to the said advertisment in papers Prof. Sempebwa and 8 others successfully applied and obtained court's permission to have them joined as $\mathcal{L} = \mathcal{L} = \mathcal{L}$ defendants. At the time of the applications Prof. Sempebwa was represented by Mr. Katende, Advocato, and the 8 others were represented by the Attorney General through State Attorneys. Mr. Katende continued to represent and defend Prof. Sempebwa (Deft.) but the $\textsc{State}\xspace$ Attorney informed the court that the 8 defendants **新規定計画** joined as parties had withdrawn their instructions from Attorney General. Out of these 8 defendants only two appeared 'in courts' They are Osindek Wangor and Kirunda. These two gentlemen adopted the written statement of defendants 1 and 2 but their attendence in court was irregular in that they appeared at the hearing on some days and remained absent on other days. The remaining 6 defendants y who had applied to be joined as defendants and were permitted to be so joined never appeared in court throughout the hearing of the case.

Prof. Sempebwa filed his written statement of defence.

At the outset some preliminary points of objections were allowed to be argued. I have had the benefit of looking at the

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draft judgment prepared by the learned Chief Justice\* With great respect I say that he has dealt with and disposed of the said p'reliminary points so well and ably that I consider it absolutely unnecessary to?deal with them. I respectfully agree with rhe conclusions arrived at by the learned Chief Justice⁴

**5**

After the disposal of the preliminary points the parties on both sides were asked to submit agreed issues for settlement by court. But it was soon realised th.-.t the parties could not agree on the issues to be framed. It wss then decided that the parties on both sides should prepare separate issues. This resulted in three sets of issues - one by the plaintiffs, one by the original defendants ¹ and 2 and the third by Prof. 3empebwa.

The main purpose in having agreed issues before the court is to facilitate reception of evidence. 3v\*idence can be confined to the issues arising on pleadings when such issues are agreed by the parties to the suit. It was the absence of agreed issues which compelled the court, ^I think, to be liberal in allowing evidence A great deal of evidence by way of personal opinions was received. This was inevitable in view of the nature and character of the suit. It is a declaratory suit wherein certain declarations are ■? sought. Court has disere cion to make or decline to make ddclarations sought instead of proce..- dings, to- answer each issue as is usually done. at the hearing.

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The first declaration sought is :-"The supreme law of Uganda is the Constitution of the Republic of Uganda 1967 and not the Constitution of the Ugande National Liberation Front and/or the minutes of the Moshi Unity Conference."

A draft Constitution of UNLF was adopted by NCC in Kampala sometime in May, 1979. It is marked exhibit P.1. It seeks to regulate the affairs of UMLF. The Minutes of the Moshi Unity Conference on the other hand is the record of the deliberations of the Unity Conference held at Moshi. Both these documents - the ULTP Constitution and the Minutes of the Moshi Unity Conference are exhibited. It is not in dispute that these two documents do not form part of the law of Uganda. It is also not in dispute that the Constitution of the Republic of Uganda is the Constitution of 1967.

I have no hesitation (in declaring that whe Constitution of UNLF and the Minutes of the Unity Conference of Moshi are not the laws of Uganda and that they do not in any way whatsoever affect the constitution of the Republic of Uganda of 1967. The Constitution of 1967 is the supreme law of Uganda.

The second declaration, sought is :-

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ambe powers to make ministerial appointments and appointments to the Fublic Service of the Uganda Government: vest solely in the President and that the Consultative Council has no valid rowers to ratify and approve such appointments."

Dr. Semogerere's $\ldots$ /7

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Dr. Semogerere's evidence is that at the conclusion of Moshi Unity Conference the delegates set up a Committee to draft a Constitution for UNLP which would be consistent with Moshi deliberations. A Faft Constitution produced by the said Committee was discussed by NCC in Kampala in May, 1979. That draft Constitution was rejected by NCC. The NCC then a cointed another Committee to draft enother draft Constitution. This Committee produced a draft Jonstitution which was debated and passed by NCC with some amendments.

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It is conceded on both sides and already declared that the UMLF Constitution is not law. According to Prof. Sempebwa it was agreed at Moshi Unity Conference that the powers of UMLF will be exercised through functional Commissions and such exercise would be under general supervision of NEO. Frof. Sempebwa testified that at the Moshi meeting it was specifically agreed that appointments made by MEC would be subject to approval by NCC. According to Dr. Semogerere it was not agreed there that appointments made by the Chairman of NEC would be subject to retification by NCC. The UNLF Constitution, however, does provide for ratification and approval of political appointments made by the Chairman of MEC. Dr. Semogerere agrees with this. But UHLY Constitution is not part of the laws of Uganda. It cannot override the provisions of law. Prof. Y. K. Lule derived powers to appoint Ministers from Legal Notice No. 1 of 1979. As already mentioned earlier Clause 5

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of the said Legal Notice provides :-

"5. There shall be a cabinet of Ministers appointed by the President which shall advise the President in the exercise of his executive functions."

It is clear from the above provision that the President had unfettered powers and continues to have the same to appoint Ministers. There is no provision in law that such appointments would be subject to ratification and or approval by the NCC. Legal Notice No. 1 of 1979 was issued by the President with the approval and advice of the NCC. Had the NCC desired or intended that the President's appointments of Ministers should be subject to ratification and approval by MCC then the $\mathbb{L}_{\text{C}}$ al Motice Mo. 1 1979 would have said so.

. Furthermore, the Legal Notice N. 1 of 1979 suspended Chapters IV and V of the Constitution of 1967. Therefore, the provisions contained in Part II of Chapter IV of the said Constitution for appointments of Ministers and Deputy Ministers became inoperative on 11.4.79. Consequently the President was not restricted in his choice of Ministers.

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I therefore, make the declaration that the powers to make ministerial a pointments vested solely in the President and the NCC had no and has no powers to require the President to submit a list of such appointments made by him for ratification and $% \left\vert \mathbf{r}\right\rangle$ approval by the NCC.

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''That the Procedure fallowed in removing the Chairman of National Executive Committee of *^J* the Uganda National Liberation Pront and thus unconstitutional," as President of the Republic of Uganda was

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It is adopted by NCC, Put evidence There These ales were not strictly followed at the meeting at State House, i-teobe cr. 19th and 20th June, 1979. As said earlier the relevant was suspended by Legal Notice No. 1- of .t.9.7i9e 1-Therewas procedure which could be followed or v/hich could be ontravened, if not followed. The declaration sought, however, ³ not that any Huies of Procedure were contravened. The hclaration a.-ked for is that the procedure followed at the feting of 19th and 20th June, 1979 was unconstitutional. Article *■■ 3* of the Constitution 1967 was not operative on 19th and 20th June, ^nfidonce in the President stood suspended. It is difficult ^constitutionally removed when the constitution itself was ^-lent about the procedure. The evidence of Ur. Semcfgfcxrere [subtful wnether any such Pules were •579 and hence the procedure laid down therein for vote of no ⁱ-.jws that the draft rules were used by NCC as a guideline. ³ see how the President could have been constitutionally or is no strict adherence to these draft Rules of Procedure. copy of draft rules of the NCC is annexed to the Plaints tus no papter of the 1967 Constitution relating to the removal of the *^J* resident

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and Prof. Sempebwa differs on the question whether on 19th and 20th June, 1979 the MCC sat as a legislature or as an organ of the UMLF. Dr. Semogerere says that it sat as an orjan of the a Front while as Prof. Sempebwa's evidence is thes it sat in its it legislative capacity. In whichever capacity the NCC sat on those 2 days it seems to me to be irrelevant for the declaration being. considered. In neither capacity the NCC could have followed a procedure which would contravene the constitution of 1967 as the Constitution was silent on the question of procedure for vote of no confidence in the President. The procedure followed could not be said to be either in conformity of any law or in contravention of any law. In these circumstances and in view of the wordings of the declaration. sought I am unable to say that the procedure followed by NCC was unconstitutional. The fourth declaration

sought is :-

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"That the National Consultative Council has no powers to remove the President from his office,"

As said earlier the NCC had two roles - one as the Legislature and the other as an organ of the UNLF. I have looked in vain for any law which empowered $\texttt{MCC}$ to remove the President when it sits as a legislature. But sitting in its capacity as an organ of the Front it could take a political decision in removing the Chairman of NEC, especially when in so doing it does not contravene any law. Taking the evidence of Dr. Semogercre that on 19th and 20th June, 1979, the NCC $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ldots$ $\ld$

the NCC sat as an organ of the UNLF the decision of NCC on those days was a political decision. It is obvious to me that the NCC as an organ of this Front.was capable of removing the Chairman of NEC from office when in so doing it did not contravene offy KACUM law at that time. I would, therefore, say that the NCC as Legislature had no and has no powers to remove the Chairman of NEC and hence the President of Uganda.

The fifth and final declaration sought is :-

"That when deciding matters of national interest the National Consultative Council must sit in the $\!$ Legislature and be govenned and guided by the Constitution of Uganda."

The NCC as the legislative body is the creature of law. The Legal Notice No. 1 of 1979 after suspending Chapters IV and V of 1967 Constitution confers on the NCC all legislative powers until a Legislative Assembly is elected. This declaration is at first sight somewhat vague. But having the benefit of Dr. Semogerere's evidence it is clear that what the plaintiffs seek is a declaration $% \mathcal{L}_{\mathcal{A}}$ and assurance that all matters of national interest must be decided by NCC as legislative body sitting as the legislature and 1967 Constitution should be the guide. Unfortunately 1967 Constitution cannot necessarily be the guide for NCC when sitting as legislature and as Chapter V of the Constitution 1967 is not operative. Normally all matters of "national interest" are decided by the legislature and democracy as I understand means that. But NCC is not only

the legislative ....../12


the legislative body it also functions am an organ of the Front. As an organ of the Front it discusses and formulates policies for the nation which policies must also be in the national interest.

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This dual role of NCC is recognised on both sides to the suit. All political decisions are undoubtely of "National interest". Can this court prevent the LCC as an organ of the Front from making decisions of political nature in its role of an organ of the Front. It would be patently wrong to say that when deciding matters of National interest MCC must sit as the legislature. NCC as an organ of the Front may consider it fit to decide on political issues of National interest and the Legislative body of NCC would perhaps have to implement such decresions by enacting laws.

Iv-is no possible for ue to declare that when deciding matters of National interest the NGC must sit as the Legislature and not as an organ of the Front. I therefore, decline to make the declaration sought.

I would like to comment on Legal Notice No. 2 of 1979. It was published on 30.5.1979 and it seeks to amend the $\rm{Le}_{\rm{Gal}}$ $\rm{N}_O\rm{tice}$ No. 1 of 1979. The said Legal Notice 2/79 was not passed or issued by the NCC. Prof Y. K. Lule issued it as the President. He had no legislative powers to issue the Notice as all legislative powers were conferred on the NCC by Legal Notice $1/79$ . I consider the Legal Notice 2/79 void and of no legal effect whatsoever.

**第27年的广泛**

3614年7月

In the plaint $\ldots$ /13

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the legislative body it also functions am an organ of the Front. As an organ of the Front it discusses and formulates policies for the nation which policies must also be in the national interest.

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This dual role of NCC is recognised on both sides to the suit. All political decisions are undoubtely of "National interest". Can this court prevent the NCC as an organ of the Front from making decisions of political nature in its role of an organ of the $\texttt{Front}_\bullet$ $\texttt{It}$ would be patently wrong to say that when deciding matters of National interest NCC must sit as the legislature. NCC as an organ of the Front may consider it fit to decide on political issues of National interest and the legislative body of NCC would perhaps have to implement such decasions by enacting laws.

Iv is no possible for me to declare that when deciding matters of National interest the NCC must sit as the Legislature and not as an organ of the Front. I therefore, decline to make the declaration sought.

I would like to comment on Legal Notice No. 2 of 1979. It was published on 30.5.1979 and it seeks to amend the $\mathtt{Le_{Gal}}$ $\mathtt{H_0tice}$ No. 1 of 1979. The said Legal Notice 2/79 was not passed or issued by the NCC. Prof Y. K. Lule issued it as the President. He had no legislative powers to issue the $\pmb{\mathbb{J}}$ otice as all legislative powers were conferred on the NCC by Legal Notice 1/79. I consider the Legal Notice 2/79 void and of no legal effect whatsoever.

四时间不用

In the plaint $\ldots$ /13

In the plaint the first .plaintiff Andrew Lut.-.koine Kayira complains that by reason of the removal of Prof. Y, K. Lule as President he, Kayira, lost ^a Ministerial appointment. He claims that he was. appointed the Minister of Internal Affairs. Kayira did not come to give evidence. In fact it is doubtful whether he was the Minister of Internal Affairs in the Government of Prof. ^I', K. Lule. I do not think any finding on the matter is necessary.

- 1.3 -

As regards, costs, the plaintiffs have succeeded in getting some o.f the declarations issued. **id** the defendants shall jointly and severally pay the costs of Plaintiff Ho, 2 (hr. oemogerere).,. It is hoped'that Attorney General shall pay the costs out of Public Punds. to No order as costs for Kayira the first plaintiff. I would therefore, order that

3AT23 AT KAMPALA this 21st day of October, 1080,

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**■1** CONSTITUTIONAL CASE NO. 1 OF 1979 $\cdot \quad \cdot$

(Coram:

Wainbuzi. C. J.

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**BETWEEN**

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| | ANDREW LUTAKCHE KAYIRA | PLAINTIFFS | | |----|-------------------------------|------------------------------------------------------|------------| | 2i | PAUL SEMOGERERE | | | | | | $_{\rm{7WD}}$ | | | | EDWARD RUGULAYO | Chairman of the National<br>Consultative Council | | | | OMWONY OJOK | - Secretary of the National)<br>Consultative Council | DEFENDANTS | | | DR. F. E. SEMPEBWA & 8 OTHERS | | |

## JUDGMENT OF ODOKI, J.

I have had the opportunity of reading the judgment of Wambuzi, C. J. in draft and I find myself in general agreement with most of his conclusions. I also agree with the reserved reasons the learned Chief Justice has given for our rulings, rejecting the various preliminary objections and applications. In view of this $\vec{\textbf{1}}$ do not propose to deal in detail with each and every issue raised in this suit.

At the commencement of the hearing of this suit an attempt was made by both parties to frame agreed issues but this attempt proved abortive. The result was that two sets of issues were framed, one set prepared by Counsel for the plaintiffs, and the other by Counsel for the first three defendants. The two sets of issues were more or less similar in substance although they were drafted differently. The issues prepared by Counsel for

the plaintiffs $\ldots$ /2

The facts and circumstances giving rise to this suit have been amply set out in the judgment of Wambuzi, C. J. Most of them were not in dispute. It would be unnecessary to repeat them.

From the issues as framed by both parties, the declarations sought and the evidence adduced. I think that this court is called upon to answer four major questions namely;

Whether the Constitution is the supreme law of Uganda; $1.$ Whether the President had powers to appoint Ministers $\overline{2}$ . without approval of the National Consultative Council; Whether the removal of Prof. Y. K. Lule as Chairman $3.$ of the National Executive Committee and President of Uganda was unconstitutional;

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Whether the various declarations sought should be issued.

I propose to deal with those questions in that order.

電話 アルコール

It is common ground that from 23rd to 25th March 1979 the Moshi Unity Conference was held in Moshi. The conference brought together 28 organisations of Ugandans both inside and outside $\overline{U}$ ganda which united and determined to overthrow the regime of $\operatorname{Idi}$ Amin for the good of every Ugandan. The Conference resolved to form the $U_{\mbox{\footnotesize{G}}}$ and a National Liberation Front (hereinafter referred to as the Front) as the body under which the various organisations were to be $\ldots$ ./7

$_{\rm eff}$ e to be operated as a United Front. The Front was committed to Since achievement of four sets of objectives namely, National Unity, bmocracy, National Independence and Social Progress. Three organs i the Front were formed and these were the Delegates Conference, be National Consultative Council and the National Executive committee and its Functional Commissions. The Delegates Conference as to be the supreme organ of the Front and its decisions were to g final and binding. In the absence of the Delegates Conference wis powers and responsibilities were to be exercised by the National Insultative Council (hereinafter referred to as the NCC). The NCC led two main roles, the first, as an organ of accountability for the Front, with power to make policy for the Front, and the second was the legislative function. Thirty members were elected members of Hime NCC. The plaintiffs were among those elected Chairman and Secretary if the Council, respectively.

The National Executive Committee and its Nunctional Commissions were given broadly the responsibility of executing the policies and ecisions of the Front, and to provide administration in the iberated areas. Prof. Y. K. Lule was elected Chairman of the Pational Executive Committee and given power to form a Covernment the event of the Front accomplishing its objective of overhrowing the regime of Idi Amin.

It is now a historical fact that on the 11th April, 1979 the objective of overthrowing the regime of Idi Amin was effecti-Tely achieved through the Diberation War, and the Front assumed

the powers $\ldots$ /4

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the powers of the Government of Uganda, headed by Frof. Lule as Fresident. The President, acting pursuant to those powers and with the advice and approval of the NCC, made a Proclamation under Legal Notice No. 1 of 1979 published on 9th May 1979 but deemed to have come into force on the 11th April 1979.

The Proclamation suspended chapters IV and V of the Constitution which provisions dealt with the executive and the legislature. All titles, privilegcs prerogatives, powers and functions and exemptions formerly enjoyed or exercised by the former President of the Republic of Uganda under the Constitution were vested in the new President. There was to be a cabinet of Ministers appointed by the Fresident to advise him in the exercise of his executive functions. All legislative powers referred to in the Constitution were vested in the NCC until such a time as a Legislative Assembly was elected. The legislavive powers were to be exercised by the NCC through the passing of Statutes assented to by the President and published in the Gazasta. Article 3 and 53 of the Constitution were not to apply to the passing of a statute under the Proclamation. Subject to the above provisions of the Proclamation, the operation of the Constitution and the existing laws were not to be affected by the Proclamation except that such laws were to be construed with such modifications, quelifications and adaptations ascane. necessary to bring them into conformity with the Proclamation. This Proclamation revoked the Proclamation published under Legal Motice No. 1 of 1971 by: Idi Amin on his assumption of power as Military Head of State on 25.1.71.

の<br> 電話<br> 電話<br> 電話<br> 電話<br> 電話<br> 電話<br> 電話<br> 電話<br> 電話<br> 電話

The overthrow $\ldots$ /5

The overthrow of Idi Amin¹ s regime by the UIwj? and forces its allies amounted in law to a revolution. is Jihe uullificatiqn^of^the legal order and-its replacement a new order in an illegitimate way. This theory of law know his book, General Theory of Law and State at pages 117 - 118 icre he explained the nature and legal effect of a revolution ; follows the theory of revolutionary legality, was expounded by H. Kelson A

"A revolution in this wide sense occurs whenever the legal order of replaced by a now- order .incan', illegitimate way, th:?.: is in a way not prescribed by the first order itself. It is in this context irrelevant whether or not this replacement is effected through a violent uprising against those organs competent to create and amend the legal order. It is equally irrelevant whether the replacement is effected through the mass of the people or through the action from those in government positions. ^I'rom a juristic point of vie?/ the decisive criterion of a revolution is th.-.t the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually the new men whom a revolution brings to power annul only the constitution and certain laws of paramount political a community is nullified and individuals who so far have been legitimate significance, putting other norms in tl'-jLr. nlace.

A great part /

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A great part of the legal order remains valid also within the frame of the new order. But the phrase, they remain valid does not give adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason for their validity. They are no longer valid by virtue of having been created in the way of the old constitution prescribed. That constitution is no longer in force; it is replaced by a new constitution which is not the result of a constitutional alteration of the former. If the laws which were introduced under the old constitution continue to be valid, under the new constitution it is possible only because the validity has expressly or tacitly been wested in them by the new constitution. The new order receives, i.e. adopts norms of the old order; this means that the new order gives validity to (puts into force) norms which have the same content as the $\cdot$ old order $\bullet\bullet\bullet\bullet\bullet\bullet$ . Thus it is never the constitution merely but always the entire legal order that it changed by a revolution."

$-6-$

This pure theory of law was accepted and relied on by the High Court of Uganda sitting as a Constitutional Court in the case of <u>Uganda</u> v. Commissioner of Prisons, Ex-parte Matoru (1966) E. A. $514$ at pages $555 - 6$ . It was held that the taking over of the powers of the Government by the then Prime Minister, the abrogation of the 1962 Constitution and its replacement by the

1966 Constitution ..../7

3osso 180. a victorious revolution which jstablished a new legal ordet? based on the 1966 Constitution. Zn so holding tne Court considered and relied 1966 Constitution amounted to on a decision of she Supreme Court of Pakistan in the case of The State ind Another (1958) 2PSCR

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In the State unable to cope the Provincial Cabinets, dissolved both the National and the general effect of which was the validation of laws, other than the annulled Constitution v/hich were in force before the proclamation, and restoration of the jurisdiction cf all courts including the. Supreme Court and the High Courts. The Court in four appeals borught before it. It was held that the Proclamation consituted anhabrupt political change not within the contemplation of the 1956 Constitution and that it amounted to a revolution.- A victorious revolution is an internationally recognized legal method of changing a constitution. Such a revolution ...\*/8 President1^s in Force) Order, effect of the Proclamation fell to be considered by the Supreme jin-Shief of the Army, :?hros days later the President promulgated the Laws (Continuance as the Chief Martial Law Administrator. y. Losso and Another (supra) on October, 7, 1953 the President of Pakistan feeling himself jwith the probelms of Pakistan and to maintain peace and order 'declared martial lav/ by proclamation throughout Pakistan, annulled 'the Constitution of Pakistan dismissed the Central Cabinet as well **L** jprovincial Assemblies, and appointed General Ayub Khan Commander-

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Such a revolution constitutes- cu new lav/ creating organ by virtue basic.- law creating fact. Finally it was held that the Laws (Continuance in Force) Order was a new legal order, and that it was in accordance with that order that the validity of laws and the correctness of judicial decisions had to be determined. of having become a

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. In Uganda Commissioner of Prisons (supra) the Court said, "Applying the Kelsenian principles, which incidentally form the basis of the judgment of the Supreme Court of Pakistan in the above case, our deliberate and considered view is that the 1966 Constitution is a legally valid Constitution and the Supreme Law of Uganda, and that the 1962 Constitution having been abolished as a result of a victorious revolution in law does no longer exist nor .does it now form part of the Laws of Uganda effective since April 1966 when it first came into force". i't\having been deprived of its de facto and de jure validity. The 1966 Constitution, we hold, is a new legal order and has been

Luring the course of the hearing we were informed that the case of the 6-tat^e v, Bos so and Another has now been overruled by the case of Asma Jilani Court 139 discussed by E. P. Sempebwa in the Uganda Law Fbaua (1974), page 178, v. Government of Punjab (PLL 1972) Supreme

The judgment /9

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consideration. uhat decision which appears to have been influenced by the sociocultural conditions obtaining, in Pakistan which are not sⁱ mi lar to those in Uganda\* The judgment in that case was not available to us for perusal and It would therefore be presumptuous to comment on

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In ^adzimbamuto legality of the Smith regime in Southern Rhodesia following the ... • cited without disapproval the Upsso an^d Niatoyu cases although it distinguished the position in Rhodesia on the ground that there the revolution could not be said to be successful since the old was still trying to regain I»ord Reid who delivered the majoritj^r judgment said, . Constitutional authority, Britain **I** ! control. unilateral Declaration of Independence on 11th November, 1965, *y,* Dander Burke. (.1966) ¹ A. C. 645, the;;\ Judicial Committee of the Privy Council while considering the-"-.

> It is an historical fact that in many ¹ countries - and indeed in many countries which are or have been under British. soveregnity - there are iiow regimes which are universally recognised as lawful but The law must take account of this fact." which derive their origins from revolutions or coup tat.

In my opinion the decision in the cn'se of Uganda v. Commissioner e:c parte Matovu (supra) is stil.l good law in Uganda and **1** \* v/ould adopt the principle anunciated therein relating to the 'birth of ^a new legal order. I would hold that-'the Proclamation • of Prisons

**¹** published under . .../10

nublished under Legal Notice No. 1 of 1979 was a new legal order and it had therefore the force of law, and that it was in accordance. with that new order that the validity of other laws in Uganda had to be determined.

It is common knowledge that on 30th May 1979, Prof. Y. K. Lule as President issued another Proclamation published under Legal Notice No. 2 of 1979. The Legal Notice purported to amend a substantial part of Legal Notice No. 1 of 1979. Both the plaintiffs and the first two defendants relied on both Legal Notices in their pleadings. The 3rd defendant did not rely on Legal Notice No. 2 of 1979 and contended in his evidence and submissions that it had no legal effect. The issue was whether Legal Notice No. 2 of 1979 had been validly made so as to have the force of law.

How was Legal Notice No. 2 or 1979 made? The only evidence we have on this matter is that of Prof. Sempebwa, the third defendant. This is what he said,

> "I am aware that Legal Notice No. 2 of 1979 was made. It purported to amend Legal Notice No. 1 of 1979. I say purported because no other person than the NPC had power to amend Legal Notice No. 1 of 1979 or indeed legislate. Paragraphs 3 and 4 of Legal Notice No. 1 of 1979 vesued legislative powers in the MCC. I remember raising objection to Legal Notice No. 2 of 1979 at a meeting of the Council at State House.

> > The then $\dots$ /11

**HAW DEVELOUNDER** REFLACK LIBRARY The then Attorney General informed Council that Legal Notice No. 1 of 1979 had several errors and informed the Council that he had drafted another Legal Notice and proceeded to circulate the drafts. They were discussed for 40 minutes and others pointed out that we thought it imporper that the Proclamation should be amended by another Legal Notice in view of the fact that Council was present and sitting as a legislature. Ho agreement or conslusion was reached but we found later that it was published. Legal Notice No. 2 of 1979 was not made by the legislature. I would think that it is invalid".

$-11.$

I accept the evidence of Prof. Sempeowe and his contention that Legal Notice No. 2 of 1979 was invalidly made by Frof. Lule. It is abundantly clear that Legal Notice No. 2 of 1979 was not made in accordance with the then established legal order. According to the new order all legislative powers were vested in the NCC and it was to exercise them through the passing of statutes assented to by the President and published in the Gazette. The relevant provisions of Legal Motice No. '1 of 1979 provided,

> "3. All legislative powers conferred to in the Constitution are hereby vesued in the National Consultative Council until such time as a Legislative Assembly is

> > MAY DEVELOPMENT CLN HA

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Legal Notice No. 2 of 1979 did not comply with the above provisions, The Legal Notice was not passed by the MCC but instead it was issued by the President who had no authority to do so. Only the NCC had power to pass statutes and the power of the President was to assent to those statutes. He could now turn himself into the sole legislature.

It is true that under Article 64 of the Constitution, the President had logislative powers to promulgate Ordinances where exceptional circumstances rendered it necessary. The President did not purport to act under this provision as he issued a Proclamation instead of an Ordinance. But even if he had acted under this article, it is doubtful whether that provision was not in conflict with the Proclamation which had vested all the $% \left\vert \mathbf{r}\right\vert$ legislative powers in the NCC. Secondly, it is doubtful whether the requirements set out in that article were complied with before and after the Legal Notice was made. The conditions set out are $that -$

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- (a) The National Assembly must not be sitting or is dessolved ; - (b) The cabinet must advise the Fresident that exceptional circumstances exist which render it necessary for him to take immediate action;

(c) $\frac{1}{2}$ ....../13

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(c) The Ordinance must be laid before the National Assembly immediately upon its next meeting and it ceases to have effect at the expiration of six weeks from the reassembly of the National Assembly.

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According to the evidence of Prof. Sempebwa the NCC was in session at the time the Legal Notice was made. The NCC was even shown a draft of the Legal Notice which they discussed without passing it. There was no evidence that exceptional circumstances existed to warrant the taking of immediate action, by-passing the NCC. I am not satisfied that the Legal Notice was issued under Article 54 of the Constitution. Accordingly, I hold that Legal Notice No. 2 of 1979 was made in contravention of the existing law and was null and void in toto and of no legal effect.

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It is now convenient to deal with the question whether the Constitution is the Supreme law of Uganda. But what is a Constitution? A Constitution is the basic or fundamental law of the State which directs the principles upon which the Government is founded, sets out the framework and major organs of the government, defines the powers and functions of those organs and the relationship between one another, and regulates the exercise of those functions and powers. In a formal sense, a Constitution is a document or a series of ducuments of special legal senctify embodying those principles.

What then ....../14

What then was rhe Constitution of Uganda immediately after 1979? The Interpretation Decree ¹⁹⁷⁶ defines Constitution in by law established". I have already held that the Proclamation v/as a new legal Order ^I and all other laws derived validity from it\* The Proclamation suspended only Chapters IV and ^V of the ¹⁹⁶⁷ Constitution and i preserved the rest of the provisions of the Proclamation itself. In this connection, the Proclamation provided, Section 2 as "the Constitution of Uganda as the publication of the Proclamation in Legal Notice No. ¹ of

Subject to this Proclamation the operation of the Constitution and the existing laws. shall not be effected by this Proclamation but such existing laws shall be construed with such modifications as are necessary to bring them into conformity with this Proclamation". **-sM-** •y ? "a (2)

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Proclamation published under Legal Notice No. ¹ of 1971. Lastly the Proclamation repealed Idi Amin'^s

At the time Legal Notice No. ¹ of 1979 was published there was on the statute book, the Constitution (Modification) Decree No. ⁵ of ¹⁹⁷¹ which contained certain provisions relating to the ^I executive arm of government, particularly the President and cabinet. view it was part of the Constitution of Uganda. The Decree has That Decree -was modifying the Constitution and in my

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since then been repealed by the Existing law (Miscellaneous Hepeal) statute No. 2 of 1980, passed in January 1980, There was also on the statute book the Judicature Act (Amendment) Decree No, 20 of 1977.,(as amended by Decree No, 4 of 1978) which established the court of Appeal for Uganda and the office of Principal, Judge, and made consequential amendments to the Constitution,

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I would hold, therefore, that the Constitution of Uganda **^J** immediately after the publication of the Proclamation in Degal Notice No, ¹ of 1979 consisted of the Proclamation itself. the 1967 Constitution 'without the suspended provisions, the Constituⁱ and the Judicature Act (Amendment? Decree in so far as the Constitution and the Decrees were not' i: coxiflict with the Proclamation. In other words, the Constitution of Uganda was the 1967 Constitution as modified by the Constitution (Modification) Decree,, the Judicature Act (Amendment) n Decree and the Proclamation. tion (Modification) Decree,

> •/hat is the status of a constitution in the national legal the Constitu tion represents the highest level of positive law in a national legal order. The law or the legal system is seen as a system At the highest level is theConstitution,.-.whichoregulc.tes the creation of other legal norms. ^j \* of norms which are arranged in a hierarchial structure. system? According to The Ptue Theory-of .'Daw (l967),

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At pages 221 - 223 of that book, reproduced by Lloyd, Introduct to Jurisprudence, 4th Edition, page 335, Prof. Kelson states,

> "The legal order is not a system of coordinated norms of equal level, but a hierarchy of different levels of legal norms. Its unity is brought about by the connection that results from the fact that the validity of a norm created according to another rests on that other norm whose creation in turn is determined by a third one. This is a regression that ultimately ends up in the presupposed basic norm. This basic norm therefore is the highest reason for the validity of the norms, one created in conformity with another, thus forming a legal order in its hierarchial structure ........ Considering only a national legal order the Constitution represents the highest level of positive law^it.

The above principles are given recognition and codified in Article I of the Constitution of Uganda which declares :-

- $(1)$ This Constitution is the Supreme law of Uganda; - (2) Subject to the provisions of article 3, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistence be $\text{void}^{\mathfrak{u}}\text{.}$

The High Court ......./17

業業の 国家内容 手工

The High Court of Uganda sitting as a Constitutional Court in the case of Shan y. Attorney General (No.2) (1970) E. A. 523. reaffirmed the doctrine of the Supremacy of the Constitution when it held that the 1967 Constitution was the Supreme law of Uganda. Both Mr. Samogerere and Prof. Sempebwa admitted in their evidence that the Constitution was the supreme law of Uganda. Mr. Semogerere referred to the Constitution as "the law of last reference".

I am aware of the provision of Paragraph 16 $(3)$ of the Proclamation published in Legal Notice No. 5 of 1980 which provides:-

> "Where any conflict arises between the provisions of this Proclamation and the provisions of the Constitution of Uganda, the Constitution of Uganda National Liberation Front or any other written law the provisions of this Proclamation shall prevail".

$\ensuremath{\mathrm{I}}$ do not think that this provision alters the legal status of the Constitution since its effect is merely to amend the Constitution. Consistent with what I have said above, this Proclamation also is part and parcel of the Constitution as by law established. It follows, therefore, that the Constitution of Uganda is still the supreme law of $\overline{U}_{\mbox{gandg.}}$

I shall next deal with the issue whether the Moshi Minutes and the UNLP Constitution are part of the law of Uganda. It was not seriously contended that any of these documents had been

transformed into ..../18

$-17 -$

transformed into law. Indeed both Prof. Sempebwa and Mr. Semogerere admitted in their evidence that neither of those $\frac{3}{2}$ . documents formed part of the law of Uganda. However, in their "ritten Statement of Defence filed by the Attorney General's Chambers, the first two defendants state in paragraph 5,

$-18 -$

"The Defendants aver that by the Proclamation contained in Legal Notice No. 1 of 1979 as amended by Legal Notice No. 2 of 1979 the powers of government were assumed by the $U_{\mbox{\footnotesize{G}}}$ and a National Liberation Front of which Y. K. Lule was Chairman of its Executive Committee and consequently President of the Republic of Uganda, and that the operation of the 1967 Constitution was subject to the Proclamation and the arrangements of the $\overline{v}$ _Ganda National Liberation Front as contained in the Uganda National Liberation Front Constitution".

The Moshi Minutes are a record of proceedings of the Moshi Unity Conference, Although Mr. Semogerere had reservations on the correctness of the record produced by the second defendant as Secretary at the meeting, he admitted that the Minutes had been approved by the NCC in mid May 1979.

The UNLF Constitution is a document containing the principles and organs of the Front and the functions and powers of those organs. It is a political document of a political organisation; the Front. Mr. Semogerere: said in his in his evidence that the Fron was anologous to a political party, and it follows that the

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, the Moshi Minutes would be the guidelines. . of any doubt in the interpretation of this Constitution The UliLF Constitution provides 1.. Article -<10.2 that in the event

U1ILF and the Draft Constitupreamble to legal Notice tion of the Pront are referred to in the This is the nearest th.'.t the UhTLl? Constitution ■Io. ¹ of 1979. and the Moshi Minutes came to be: incorporated into the law of *ⁱ* this country. **¹** of\*the provisions of an enactment-. *J* preamble does not form part The traditional function of a' preamble is. to explain the object of a statute or to explain the reasons why the enactment is considered desirable. In general a preamble provides background i, information ..../20 The Moshi Unity Conference, the But they were not so incorporated because a

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In semu Kiseka Mukwaba & Others v^t Daudi Musoke Mukubira & which considered the legality of the deportation of the Kabaka of Buganda, it was held that in so far as schedule to Sap, 77, the Agreement formed part of the Const!- •cut ion and created legally inforceable rights and liabilities. i Griffin, - i **.7:,** as a Others 7 ULH 74, a case the Uganda Agreement of 1900 had been incorporated in a statute: ⁰ . J., said,

> exemplified by Ordinances of -he Protectorate the Agreement was consolidated source and origin of lav/ and rights and liabilities in Buganda. Article-⁵ of the Agreement in effect had foreseen this position and sought to preserve it since ^I Article 5 reads - ''The laws made for the general government of the Uganda Protectorate by Her Majesty's Government will be equally applicable to the Kingdom of Buganda. except in so far as they may in any particular conflict with the terms of this Agreement, in which case the terms pf this Agreement in y/hich case the terms cif this Agreement, will constitute a special exception in regard to the Kingdom of Buganda". as a ''Thus in my view, to the extent above

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had not been made part of the municipal law of Uganda despite referencesxto it in various Ordinances, The Court said.

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"It will be observed that what the High Court was asked by prayer 2(a) to do was to construe the Agreement and to declare that any act or **1** omission which is inconsistent -with the provisions of the Agreement or with the provisions **]** of the Agreement or alternatively with its spirit or intendment (e.g. the Crown Lands Adjudication) Huies is illegal, null and void. This the Court rightly refused to do. Mr, Kazzora argued that the Agreement has been made part of the municipal law of the Protectorate and drew attention to various Ordinances in which the Agreement is mentioned either in the preamble or the body of the Ordinance. - • - I am not satisfied, however ? that the Agrecment has been made part of the municipal law of the Proteevorate and I think that it must be regarded only as one of the natiove Agreemeats or treaties under which the Crown derives the jurisdiction in Uganda which it has since exercised"•

> Adopting a.s I do the above reasoning and having regard to the evidence in this case I am of the firm view, and I would hold, that neither the Moshi Minutes nor the UNLF Constitution nave been transformed into law or incorporated in any law and are, therefore, not part of the law of Uganda. They are

^I political /22

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' '4

political documents of association which like other instruments of association or qo-operation operate under the law. They are subject to the law, and not the law subject to them.

Having disposed of the first major constitutional question and put the Constitution in its proper legal perspective, I would now proceed to deal with the second question, namely, whether the President had powers to appoint Ministers without approval of the FCC. It was contended by the plaintiffs, that the President had, under the 1967 Constitution, as amended by Proclamation in legal Notice No. ¹ of 1979, exclusive powers to appoint Ministers., and that the NCC had no valid powers to approve or ratify such appointments. ments. there was no conflict between the provisions of the Constitution of Uganda and those of the UNI? Constitution regarding such appointments. The Defendants, on the ration? to approve and ratify ministerial and political appoint- ^B/was further contended by the Defendants that - \*5 "\*\* ⁵ ■•'■Wtlicr hand argued that the »CC had cowers under the UNL? Consti-

The provisions governing the appointment of -<• inistors, at contained in Legal Notice No. ¹ of 1979 and the Constitution (Modification) Decree No. 5 of 1971. Paragraph 5 of the Proclamation provided, rhe material time were

> "There shall be advise the President in the exercise of his executive functions11\*. a Cabinet of Ministers appointed by the President which shall

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Section 5(1) /23 Section 5(1) of the Constitution (Modification) Decree provided,

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"There shall be an Attorney General who shall be a Minister of the Government appointed by the President".

On the other hand, the UNLF Constitution provided in Article $V$ 5.4. as follows,

"(a) The National Consultative Council shall

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(iv) To approve and ratify all political appointments made by the Executive Committee and the Government of the Front^i.

$(v) \quad \ldots \quad \ldots$

The task of this Court is to interprete and give meaning bo the above provisions. But what principles govern the interpretation of the Constitution? It appears well established that the principles which govern the construction of statutes apply to the interpretation of a Constitution. See: Attorney General of Uganda v. Kabaka's Government: (1965) E. A. 393 and Republic $r.$ El Mann (1969) E. A. 357.

In Atvorney General of Umandy v. Kabaka's Government (supra) the High Court sitting as a Constitutional Court said,

> "It is trite law that the Independence Order, the Independence Constitution and the Schedules to the Constitution including the

> > the schedule $\ldots$ /24

•uhe schedule are to be interpreted in accordance with the same rules of construction as those which govern the interpretation of Statutes"•

The rules of statutory interpretation are lucidly summarised "The cardinal rule for the construction of Acts of Parliament -is. that they should be construed according to the: intention expressed in the Acts themselves.. 'The tribunal that has to construe an Act of a legislature or indeed any other document . has to determine the intention as expressed by the words used. And in order to understand these words it is natural to inquire what is the subject matter with respect to which they are used and the object in view ⁱ If the words of the Statute are themselves precise and unambiguous then no more can be necessary than to expound thoae words in' their ordinaryd\$nd.natural sense. The words themselves alone do in such a case best declare the intention of the law given". in Craies on Statute Law (oth Bdn.) at page 63 as follows

constitution than the Court would adopt to an ordinary enactment of the legislature and he cited some the Constitution of India (5th Bdn.) at accepting the above principles invited the Court to apply a more passages from Basu on liberal construction to a In Republic v, Bl Idann (supra) Counsel for the accused while

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page 54 which appeared to lend some support to his view. Counsel for the Republic on the other hand contended that the same cannons of Construction apply to a constitution as to any other enactment of the legislature. Mwendwa, 0.5., maid,

$-25-$

"There are, we consider, dieta which appear to support either view point. But we think that the issue is put into true perspective in the citation which appears on page 55 of Basu in which Das, J. in Keshave Menon v. State of Bombay (1951) S. C. R. 228, a Bombay case, said, 'An argument founded on what is claimed to be the spirit of the Constitution is always attractive for it has a powerful appeal to sentiment and emotion, but a Court of law has to gather the spirit of the Constitution, from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot provail if the language of the Constitution does not support that view! We respectfully adopt this dictum as setting out the correct approach to the interpretation of a Constitution. We do not deny that in certain contexts a liberal interpretation may be called for, but in one cardinal respect we are satisfied that a Constitution is to be construed in the same way as any other legislative enactment and that is where the words used are procise and unambiguous

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**CONTRACT OF STATES**

they are to be construed in their ordinary and natural sense. It is only where there is some imprecision or ambiguity in the language that any question arises whether a liberal or restricted interpretation should be put upon the words".

I am highly pursuaded by the above statements with which I respect fully agree, and I would adopt them in the interpretation of the Constitution under consideration.

Before I consider the provisions of the Constitution involved, I would point out that the Moshi Minuves and the UNIF Constitution cannot be called in aid in the construction of the Constitution. Reports of conference are not normally admissible in evidence to influence the construction of legislation and the same position applies to instruments of association of political $% \left\vert \mathcal{A}\right\vert$ organisations.

$\mathbb{Q}$ If authority were needed for the proposition I have just made, I would refer to the case of Katikiro of Buganda v. Attorney General of Uganda (1959) E. A. 582 (C. A.) and (1960) E. A. 784 (P. C.); and Attorney General of Uganda v. Kabaka's Government (1965) 2. A. 393. In the first case which was quoted with approval in the second case, the Court of Appeal for Eastern Africa considered the interpretation to be placed upon a Schedule to the Buganda Agreement 1955, which schedule had been given the force of law and accordingly was justificiable as part of the municipal law of Uganda. The appellant relied in part on a

**The same property and**

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2004年1月20日

White Paper $\ldots$ /27

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White Paper which included the proceedings of a Constitutional Conference which had earlier taken place at Hamireinbe• O'Connor, to say, P., in dealing with the question of the rfhito Paper had this

27 -

''What we are interpreting is legislation. Under ordinary rules for the construction of statutes the reports of Commissioners **J** are not admissible for the purpose of directly ascertaining the intention of the **^J** Legislature though they may p.err.aps be looked at as part of the surrounding circumstances ■Tor the purpose of seeing what was the evil or defect which the Act under Construction was designed to remedy; see the speech of Lcrd Halsbury; L. C. in Lastman Photographic '0. •'Tight in Assan Railways and Trading ^Cq. Ltd. report and recommendations of a conference such as the Uamirembe Conference", v^t Controller General of Patents (1898) A. C. at p. 573-576 as explained by Lord I assume that this rule would apply also to the v. Inland Reyunue Cours (1935) A. C. at p. 4-58«

> □ent of Ministers. The relevant provision is, I now proceed to consider the provisions relating to appoint-

''There shall be a cabinet of Ministers appointed by the President".

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The word ⁱ Interpretation Decree. It is a word in common usage in statutory ^appoint" is not defined in the Constitution nor in the

ⁱ provisions ..../28

provisions. It is used in various provisions *of* the Constitution where the -resident is given power to appoint various officers in government, public services and statutory bodies. In this context, the word appoint is,- in my view, used in its ordinary sense and therefore it must be construed in its ordinary and natural meaning. Dr, Byamugisha for the plaintiffs, referred us to the meaning assigned to this word in the Oxford English Dictionary Vol, ¹ P. 408, where the word appoint is said to mean, among other things,

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!,To determine authoritatively, proscribe, decree or ordain",

• I think this meaning conveys the idea of a final determination hold that to appoint a person to an office means to make an authoritative and final decision t?.-:t a person is to occupy an office or perform the functions of that office. I do not think that the language used in the provision leaves any room to accept the contention of the defendants that the appointments were subject to the approval of the NCC. -he word approve'¹ generally means to confirm some action which has been taken or decided upon or io.about to be taken or entered into. See Zuleiman Fakir Mohamed If the legislature had intended to subject such appointments to approval and ratification by the NCC, there was nothing to atop it saying so. and^x. would It is clear that vdiere the • ^resident is required to act in accordance with the advice of a certain authority, v. A. J. Hindoo (1957) 3. A. 789.

the statutory /29

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statutory provisions specify so. It follows that the ratification\* pijident had no-legal obligation under the Constitution to ministerial appointments to the NCC for approval and

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The powers of HCC to approve and ratify ministerial and I have held is not lav; in Uganda. To subject ministerial □ointments made by the President to approval and ratification would LC^jld be cloarly to fetter his executive po-./ers. I am of the view ^J hat the provisions of the UhLF Contitution v/ere incapable of lpetering or limiting the executive powers of tne President under Constitution of Uganda. Whatever powers that NCC had under 1,'he UNLr Constitution over ministerial appoinr.iiQnts were not **c'f** ^itical appointments were contained in the UnLF Constitution (gych as ^.egai hut political powers.

**^C** The next question to be considered is whether the removal of Prof. Lule as Chairman of the National Executive Comittee and President of Uganda was unconstitutional. The plaintiffs \* contend that it was unconstitutional whereas the defendants? argue that it was constitutional. The plaintiffs aver in paragraph 15 of their plaint that -

> "±n voting out of of'.fice the said Inile as Chairman of the Uganda National liberation President of Uganda\* the Consultative Council purported to act on the basis of the provisions of th.e Constitution of tiie front and as

> > Uganda National /pO

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Uganda National Liberation Front and the Minutes of the Moshi Unity Conference". That allegation is admitted in substance by the Defendants. In

$-3i^2$

Paragraph 10 of the Written Statement of Defence filed by the first two Defendants, they plead,

> "No admission is made of paragraph 15 as the National Consultative Council did not purport to, but did, act on the basis of the Constitution of the Uganda National Liberation Front and and the Minutes of the Moshi Unity Conference".

On the other hand, in paragraph 16 of his written Statement of defence, the 3rd Defendant contended,

> ¹¹In the further alternative but without prejudice, paragraphs 15, 16 and 17 of the Plaint are denied and it shall be contended that the decision to vote the said Y. K. Lule out of office referred to in the Plaint was made under the Constitution of Uganda 1967 as modified by Legal Notice No. 1 of 1979 and the arrangements of the Uganda National Liberation Front as contained in its Constitution and the Minutes of the Mosni Conference and therefore the decision was not <u>ultra vires</u> the provisions of the Constitution of the Republic of Uganda 1967, but legimately made.

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The plaintiffs ....../31

**3\***

functions under ltd two respective roles, act in accordance with the Constitution of 1967. In paragraph IQ? of their Plainty they.' plead,. The plaintiffs contend taat the NC'J must, w.ien discharging ins

> ''The 1st and 2nd Plaintiffs ar--; further aggrieved in that as members of the National Consultative Council and also as members of the Legislative Assembly they arc duty bound to ensure that the National Consultative Council both of its own and also in the other capacity where its members are part of the legislature, must in discharging its respective rcles act within the purview of the Constitution the Constitution of the Republic of Uganda of 1967, but the National Consultative Council has failed in many instances/' to act within the purview of this Constitution but has instead acted in direct contravention of the Constitution ⁿ of the Nation, i.e.

Three instances of contravention are then listed.

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Several issues arise out of these pleadings. The first is what are the two roles of the NCC and in what capacity was the NCC acting when it removed Prof, Lule from office. The second issue is whether the NCC had powers to- remove Prof. Lule from office. The third issue is whether the removal of Prof. Lule is a justificiable act.

It is common ground th:.t the NCC had two roles, first as the legislature and the second as a political organ of the UNLP.

Its legislative *.,*. ./\*52

established by Paragraphs 5 -nd 4 of the Proclamation under Legal Notice No. ¹ of 1979, which vested all legislative powers under the Constitution in the NCC until such ^a tine as ^a Legislative Assembly was elected. As ^a creature of he statute, the powers of NCC were statutory and were to be found •of th ^U in the Proclamati and the Constitution of 1967\* The power to 5.5(a yremove the President by a vote of no confidence was not contained in the Constitution as Article 30 which gave tnat power to the National Assembly had been suspended by the Proclamation. Its legislative rcle was

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?he -h Prof. Sempobwa .in his evidence claimed that the HOC was ⁵ vo sitting as ^a legislature wr.en ^a motion of no confidence was Artic. moved against Prof, Pule, I-r. ^cenogerere on the other hand ^rsfated tha. the NCC ^r wau the time sitting as an organ of the 7 Pront', V 5.1 ox the'~NLP Co- •• l4-u--'icr . The powers aiu. functions of the NCO are listed under Article 5-4(a) as follows : The NoC. as an organ of the Front is set up by Article

- (i) To initiate policies of the Pront and its government; - (ii; To consider and approve policies initiated by the Front's Executive Cormittco and government; - (iii) To be the Supreme Legislative Body of the Front and its government; - (iv) To approve and ratify all political appointments made by the Srecutive

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Committee. and the government of the Front;

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ⁱ and the Administration on matters of general policy".' (v) To guide, oversee and direct.the Executive

The National Executive Committee is established by Article V **.1** \* the UNIS' Constitution and its composition is set out in clause 5(a) of that Article as consisting of:

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- (ii) Vice Chairman and - (iii) Nine menders1'.

le \*UC is given power to fill vacancies in the Committee and ren :o remove members from the Committee. In this connection .'tide V 5.5 of the oNL? Constitution provides,

> In the event of an office or position falling vacant in a functional Commission, the Executive Committee or the National Consultative Council the same shall be filled by an election at a duly convened meeting of the Council i!(1)

(m.) An office or position becomes vacant in the event of resignation. death, permanent physical or mental incapacity duly certified by a team of competent registered doctors or on the removal of the holder thereof by a duly and properly convened meeting " *''* ^b'f the "National Consultative Council".

Having regard /34 parties and the relevant provisions under which the parties claim NCC was sitting as a political organ of the UNLP when it passed ^v 1 also hold that the NCC acted in accordance with the UBIu? Constitution when removing Prof. Lule from the office of Chairman of the National Executive Committee of the UNI,?. ^I hold further that Prof\* Dule ⁱ having lost that office, he could not hold the office of President of Uganda which he had assumed by virtue of being Chairman of the National Executive Committee, a motion of no confidence against Prof, I. Dule. -Laving regard "c that the NCC acted, I am of the view, and I would hold that the

As it has not been proved that any particular provision of ^c oustitutionaJ.. titution guarantees freedom of association in Article 18, and the UNLii- Col \*"tion is an instrument of association for the ?ront as a political organisation. The removal of Prof. Pule was carried out under intra vires the UNL? Constitution, According to the evidence before us the NCC had not adopted any Rules of Procedure but it It is not possible to hold that the procedure adopted by NCC when moving the motion On, the cnnt'«u,jr bix\* Cnr-cs this instrument of association and in my view, that action was was guided by the Draft Rules of Procedure. has no basis for holding that the removal of Prof. Pule was un ac.tion of the NCC in removing Prof. Pule from office, this Court the Constitution or indeed of any law, was contravened by the

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In any case, I would accept the submission of Mr. Byamugisha, learned State Attorney, that- the. removal- ofPBr.of\* Lule from office is reserved to political orgo-hpiof the State. Mr. Byamugisha referred us to the case of Uganda among others. Counsel submitted that what happened at State House, Entebbe, was a matter of accountability of the NCC to the whole nation and not for this Court to intervene in the ⁱ matter^ He invited the Court to desist from making a decision which\* would have far reaching and disastrous consequences. his sunmission, political questions could only be resolved by the executive and the legislature• -MBSAW of no confidence in Prof. Lule was irrsgjilar or unconstitutional. was a political act which is not justificiable in Courts of law but v^t Commissioner of Prisons ex-parte Matoyu (supra) and Luther v, Borden (1849) *7 How, 1*

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In Luther v, Borden, the Supreme Court of the Halted States defined a political question as,

political power,of sovereignty, of government, **' ^I** determination of which is based on Congress and the President whose decisions arc conclu- **.1** sive on the courts". a question relating to the possession of

This defination ?;as quoted with approval in the case of Uganda The removal of **¹¹** Prof. Lule raises questions relating to power", and in my view falls within the ambit of the above y, Commissioner of Prisons, Ey-parte i&atovu. "possession of political

**¹** definition /36

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definition of a political question.

There is authority for the proposition that courts have power to inquire into matters essentially political. In the case of <u>Luther</u> y. Borden the Supreme Court said,

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"This tribunal should be the last to overstep the boundaries which limit its own foundation. And while it should always be ready to meet any question confined to it by the Constitution it is equally its duty to take care not to to involve itself in discussions which, properly belong to other forums. No one we believe has ever doubted the proposition that according to the institutions of this country, the sovereignty in every state resides in the State, and that they may alter, and change their form of government at pleasure. But whether they have changed it or not by abolishing an old government, and by establishing a new one in its place, it is a question to be settled by political power. And when that power has decided, the courts are bound to take notice of its decision and follow it".

The court went on to say that political questions are not settled on strict legal principles but rather on political considerations and expediency. The Court re-assented;

> "But fortunately for our freedom from political excitaments in judicial duties this court can

> > **MEMORATOR**

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never with $\ldots$ /37

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never **with** propriety be called on to be the' **umpire** in questions merely political. The adjustment of these questions belongs to the ^I people and their political representatives, either in the State or general government\* These questions relate to matters not to be settled on strict legal principles\* There are adjusted rather by **inclination** or ³ prejudice or compromise, often. Some of them **¹** succeed or are defeated even by public policy ^j alone or mere naked power rather than intrinsic ^J right".

I would respectfully agree with the above observations and **would** hold that the principles enunciated therein apply **with** equal force to the political question under consideration. I would hold that the removal of Prof. Lule was not a ⁱ matter and 1 would decline to inquire into its validity. justificiable- "

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. Finally I shall deal briefly with the question whether the declarations sought should be issued. The first declaration prayed for is,

> ''That the supreme law of Uganda is the Cons tition of the Republic of Uganda of 1967 and not the constitution of the UiJLF or the Minutes of the Moshi Unity Conference1'.

I have already held that the supreme law of Uganda is the Constitution of Uganda as by law established i.e. the 1967 Constitution with modifications and amendments. The Moshi

Minutes and /38

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Minutes and the UNLP Constitution themselves not being law ore not capable of being superior to any law, leave alove having any legal supremacy. I would therefore issue that the Constitution of Uganda of 1967 is the Supreme law of Uganda. a declaration

The second declaration asked for is stated in these- words; "That the power to make ministerial appointments, appointments ro the Public Service of Uganda Government vest solely in the President and that the Consultative Council has no valid powers to ratify and approve such appointments"•

It is clear that the wording of this declaration has been overtaken by events since under the Proclamation in Legal Notice The dedlaration sought can only relate to the position at the time of Prof. Lule's removal. Ihave already held that the President had powers to appoint Ministers without approval of the. NCC. No evidence was adduced nor arguments advanced in respect *i of* the powers of the President or the NCC over appointments in the Public Service. It would be unsafe to make any decision In the result I •would issue a declaration that at the material time, the power to make ministerial appointments vested solely in the President and the National Consultative Council had no legal powers\* ;. No. 5 of 1900 the power to appoint Ministers is vested in the Military. Commission which today exercises executive functions. regarding such appointments, and I make none.

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to ratify /39

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to ratify and. approve such appointments.

^G Thirdly, the plaintiffs pray,

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''That the procedure followed in removing the Chairman of the Executive Cqmnri ttee of the UNLP and thus as President of the Republic of Uganda was unconstitutional".

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³ Ae I have already said that it is not possible to hold that the removal of Prof# Eule was unconstitutional and that in any case, the matter is not justificiable in this court, being a political ^I ^a question, I' would not issue this declaration.

The fourth declaration the plaintiffsrseek is,

''That the National Consultative Council has no powers to remove the President from'office".

-or the reasons given above I would issue a modified declaration that the NCC acting in its capacity as the Legislature had no and has no powers to remove the President from office..

fifthly and finally the plaintiffs, pray the Court to **4** declare, ¹

> ''That when deciding upon matters of national interest the National Consultative Council must sit in the Legislature and be governed and guided by the Constitution of Uganda".

The plaintiffs did not explain 'ihat they meant by ''matters of national interest" and I am unable to understand precisely what that expression includes. Nor is it clear why the NCC

must sit /40

FBBEKGB LIBRAS.'y

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must sit as Legislature when deciding such matters. The declaration sought is so vague that $\ensuremath{\mathbf{I}}$ find that it would serve no useful purpose in issuing it, and I would decline to do so.

LO.

In view of the nature of this case, its constitutional importance the relationship of the parties and the partial success of the plaintiffs in the suit, I would order that each party bears his own costs.

DATED AT KAMPAIA this 21st ........ day of .......... 1980

> (B. J. $Odoki$ ) JUDGE.

| mity No.1 | |-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | SAN BEVELUEMENT CENTRE<br><b>REFERENCE LIBRARY</b> | | IN THE COURT OF APPEAL FOR WOANDA | | AT KAMPALA | | Coran: Manbuzi, C. J., Lubogo, J. A. Manyindo, J., Asthana, J. & Odoki, J.)<br>CONSTITUTION CASE NO. 1 OF 1979 | | <b>BETWEEN</b> | | | | ANDREW LUTAKOME KAYIRA<br><b>FLAINMIPPS</b><br>PAULO SEMOGERERE<br>$\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{1}$ $\mathbf{$ | | | | AND<br>1. EDWARD RUGUMAYO<br>- Chairman of the National | | Consultative Council<br>DEFENDANTS | | OMWONY OJOK<br>Secretary of the Mational)<br>2.<br>Consultative Council | | DR. F. E. SEMPEBWA & 8 OTHERS<br>3. | | JUDGMENT OF LUBOGO, J. A.<br>I had the opportunity of reading the draft judgment by Wambuzi, | | $^{\text{C. J.}}$ I respectfully agree with the preliminary points dealt with<br>in his draft judgment and the conclusions arrived at. I would havever, | | like to add the following: |

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This representative action was filed by Andrew Lutakome Kayira and Paulo Semogerere members of the National Consultative Council as plaintiffs against Edward Rugumaye, Chairman of the National Consultative Council and Onwony Ojok, Securatory of the National Consultative

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REFERENCE LIBRATION

Council in their official capacity as defendants. The National Consultative Council (hereinafter referred to as the Council) wa composed of 30 original members at the material time appointed a Unity Conference at Moshi Tanzania on or about 25th March 1979. The paintiffs were also members of the Council. This action was filed under Order one rule 8 of the Civil Procedure Rules. On a the application the learned judge ordered that all original membe of the Council should be served personally. This order was altered by this Court and it was ordered that service be effected by adve sement in Munno and Uganda Times newspapers. Following on the calling sement Dr. Fredrick Sempebwa, successfully applied through his o Mr. Katende, to be joined as defendant. Inter eight members of Council also applied successfully through attorney-general to be joined as defendants under the provisions of Order I rule 8(2) of C. P. R. but did not file their own defences. Among them were Dr. Luwuliza Kirunda and Osinde Wangor who made occasional appears in Court. Both defendants adopted the Written Statement of Defend filed by the attorney-general on behalf of the first two original defendants.

$3/...$

$-2$ .

The plaintiffs in their pleadings, called upon this Court to take declarations in regard to certain constitutional matters that wrose on the removal, by the Council, of Professor Y. K. Lule as Resident of the Republic of Uganda. Counsel disagreed on the issues. is obe decided with the result that each party framed its own issues and put them in separately. However, the issues were never referred e again by the parties during the hearing or in their submissions. The inference I draw from such silence is that they were not taken beriously with the intention of being adjudiented upon. For this reason no reference will be made in regard to them.

- 3 -

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The plaintiffs called two witnesses namely Anthony Sekweyama, and Tarsis Banyenzaki. Paulo Senogerere, the second plaintiff also gave evidence on his own behalf. The defence had only one witness hemely Dr, Frederic Sempebwa. Right from the outset I must cay that I was not inpressed by the evidence of Anthony Jekweyama. His evidency was mostly if not all, hearsay. He admitted that he was out of the ountry at the time of the removal of Prof. Y. K. Lule and his knowledge was based solely on the broadcast on the Radio and T. V. and in what he read in newspapers. I shall therefore not take into account The testinony of this witness.

$4/...$

$\mathbf{I}$ Briefly I shall now review the evidence before the $\mathop{\rm Ccut}\nolimits$ a $\mathbf{I}$ adduced by both parties. I shall first of all deal with evidence of Tarsis Banyenzaki, Assistant Clerk of Mational Assembly Later appointed Clerk to Council, who, on appointment as Clerk of the Council started work on 6th October, 1979. Apert from being see to the Council he was also administrative officer. He produced E. Council's Rules of Procedure Exh. P3A and F3B. The Rules were d upon and amended in December 1979 and sent to the Government Pres printing in the same north. However, he said that before they we sent for printing the Rules were being used in the months of May $\mathbb{R}^2$ and June up to October 1979. He could see no difference between copy of the Rules attached to the plaint and the Rules produced by

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The evidence of PW2 Semogerere and that of DW1 Fredrick Sempe seem to agree in all relevant particulars except in a few matters opinion. It is counon to the testimony of both witnesses that a Unity Conference was convened at Moshi, Tanzania by groups of Ugam with the objective of liber ting Ugenda from the tyrrany of Idi Ami This conference was concluded on 25th March 1979 after three days' deliberation in which an interim administration was formed before

$5/...$

$\mathbf{I}$ election were to be held in $\textbf{U}_{\mbox{ganda}}$ after liberation . The $\textbf{U}_{\mbox{ganda}}$ National Liberation Front was formed (hereinafter referred to as UNLF). The UNLF was a name given to composite organisations which took part in the Moshi Unity Conference, The UNLT had different organs charged with specific roles to play in fulfilment of the objective of UNLF ; secreta before and after liberation of the country. These were the National Consultative Council, the National Executive Committee, the Military re deb-Connission, Political and Diplomatic Connission, Pinance and Admin-Fress it istrative Commission. A committee was set up for the purpose of drawing up a constitution for UNLF. The first committee's draft constitution was not approved. Another committee was then set up which wrote a draft constitution and agreed upon by the Council in late May 1979. A copy of the Constitution was exhibited as $P1$ . Both Edward Rugumayo and Omwony Ojok were elected as Chairman and Secretary of the Council respectively at Moshi, and they were members of the Council of 30 members also appointed at Moshi. The Council had two functions namely to devise policies for the attainment of the objectives Anin of the UNLP. In this function it was accountable to the UNLF. The second function was a legislative one that is to enact laws for the

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country. These legislative powers were conferred upon the Council $\overline{MS}$ later by Legal Notice No.1 of 1979 section 3 which came into force the on 11th April 1979. There was another Legal Novice No.2 of 1979 🎆 $c$ t which purported to emend section 3, 4 and 5 of the Legal Notice No. con of 1979. $stc$

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The members of the Council were sworn in some time in May 1979 as nembers of the Legislative Assembly and plodged to observe the Constitution of Uganda. According to the testinony of both witness on 8th June 1979 a notion was moved calling upon the Chairman of National Executive Committee of UNLF, Prof. Y. K. Lule to submit uinisterial appointments he had made to the Council for ratification The debate was adjourned to 12th June 1979 when the Chairman of NEC could be present. On resumption of the debate it was resolved that the Chairman submit appointments to the Council for ratification. The Chairman pledged for more time as the notice was imadequate. The Council was then adjourned to 19th June 1979. On both these occasions it was stated by DW1 Sempebwa that the Council sat as a Legislature. There was a meeting of the Council on 19th June as scheduled at State House, Entebbe in which a vote of ho confidence

Jil was passed to relieve Prof. Y. K. Lule of his Office as President of the Republic of Uganda. However, the witnesses -differed in one ) catcrial particular. Senogcrere stated that the Council on that **NOi1** the other hand Sempebwa stated that it net as They both agreed, however, that the Huies of Procedure were not complied with, especially.^ ^j Section 50(i) of the Huie which provides for JSSCl before- the meeting at which the notion is tc- bo made and' such notion shall be signed by the member::and at least 2 other'members supporting it". 'Phis irregularity was pointed out to''the Chairman of the Council who merely gave a curt reply that the Rules were a mere guideline. **:t** -hey protested further to the manner of voting by secret ballot instead of show of hands. Again this procedural complaint 'went unheeded. ?he passing of a vote of no confidence in the Chairman of -'-C was precipitated by the fact that the Chairman still wanted time ministerial appointments to the Council. bios ec "notice of notion shall •■A be given in writing by a member- to the Secretory at least one day. a Legislature. occasion net as the organ of the UNL1?; while on Ho mo e tine was allowed. sone constitutional matters, probably with regard to submission of **0** to consider **oed**

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The motion was put to a vote. Eighteen members voted for the mc $\mathbb{I}(\mathbb{F})$ to fourteen against. PW2 and DW1 voted against the motion. $\mathsf{S}_\mathtt{ot}$ $c_n$ of them including some members who were not in favour of the mot walked out. $\mathbf{1}$

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It appears from the testimony of Dr. Sempebwa that there had been a conspiracry for the removal of Fresident by certain clique the Council. Dr. Sempebwa informed Dr. Semogerers of it, since he had easy access to the President. This information never read the President before Paulo Jangola noved his notion for the remov of the President. Thus the drama that started on 6th of June for removal of the President ended on 20th June bringing with it the of Lule's short administration.

In substance that was the testimony adduced for both the plaint and the defence.

During the hearing both witnesses expressed opinions on matters concerning the law and the Constitution. I consider these opinion as personal interpretation of the law and the Constitution but which fall in the purview of this Court. Now let us look at the Constitu tion as it stood on 20th June 1979.

$9/...$

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The 1967 Constitution is the basic document as amended by $_{\tt{BeGal}}$ Notice No.1/79 in which Chapters IV and V were suspended. Chapter IV deals with the election of the President, oath to be taken, vote of no confidence, appointment of the Vice-President and Ministers and Deputy Ministers appointments etc. Chapter $\gamma$ deals with the composition of Farliament i.e. National Assembly, Electoral Connission. Mode of exercising legislative powers etc. All over provisions of the Constitution of 1967 were left intant. Then there was the Constitution (Modification) Decree No.5 of 1971. This Decree was later repealed by Statute 2 of 1980. The Decree enpowered, among other things, the President to appoint Ministers and Deputy Ministers under Section 3(1) of the Decree. The other document is the Proclamation contained in Legal Notice No.1 of 1979. Section 2 reads as follows:

$-9 -$

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"All the titles, privileges, prorogatives, powers, functions and exemptions formerly enjoyed or exercised by the former President of the Republic of $U_{\rm G}$ and a under the Constitution are hereby vested in the Fresident with effect from 11th day of April, 1979".

Section 3 confers all legislative powers to the National Consultation Council until such time as the legislative Assembly is elected Section 4 gives powers to the National Consultative Council to exercise thome legislative powers through the passing of statutes, $S$ _ection 5 reads:

$-10-$

"There shall be a Cabinet of Ministers appointed by the President which shall advise the $\mathop{}^\mathbb{L}\mathop{}^\mathbb{L}\mathbf{r}$ esident in the exercise of his-executive powers".

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Then there is another Proclamation under Legal Notice No.2 of 1979. whose legality has been disputed. It creates a Legislative Asseler under Section 4. Under Section 5 it is stated:

> "All legislative powers referred to in the Constitution as vested in the Mational Assembly are hereby vested in the Legislative Assembly".

With regard to the dispute over the validity of the Legal Notice -------------------------------------ere were passed over to the Council. It was then up to the Council $\star$ d amend Legal Notice No.1 under the powers confirred upon it. It 1.5 true that the President had, under the Constitution, logislative p under Chapter VI article $64(1)$ . These powers were overciseable wi

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the advice of the Cabinet when the assembly was not sitting. They could only be exercised under exceptional circumstance which render it necessary for him to take immediate action. Moreover, when such ordinance has been enacted it is mandatory that it is laid before the Assembly immediately upon its next meeting and ceases to have effect six weeks from the reassemble of the Mational Assembly. There was evidence by Dr. Sempebwa that Proclamation No. 2 was discussed in the Council but no definite conclusion was arrived at. Later the Proclamation was published in the Gazette duly signed by the President on 30th day of May 1979 wiithout the knowledge of the Council. Apparently the Council was in session at the time of the Proclamation, there was no need for the President to assume the legislative powers of the Council, even if there were exceptional circumstances to necessitate immediate action. Although article $64(1)$ of the Constitution provides that the President may promulgate ordinances, I am of the opinion that Proclamation, Acts and Decrees have the same legal force and implication as an

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ordinance, have the same logal effect and the same restriction to the President's powers as provided under article $64(1)$ or the Constitution. The Proclamation was unconstitutional and therefore invalid. Accordingly Legal Notice No.2 of 1979 does not form part of the Constitution of $\textbf{U}_{\texttt{Sanda}}$ .

$12/...$

M V DEVELORMENT COM SHEERSNCS TUPPY

According to me the 1967 Constitution constitute the basic supreme law of the country, and this basic supreme law was modizing by Decree No.5 of 1971 and the Proclamation contained in Legal Notice No.1 of 1979.

$-12 -$

On that background let us look at the declarations sought to be made and the submissions made. These are the declarations. (1) That the Supreme law of Uganda is the Constitution of the Republic of Uganda of 1967 and not the Constitution of the UNLF and/or $\cdots \vdots$ the Minutes of the Moshi Unity Conference.

(2) That powers to make Ministerial Appointments, appointments to the public Service of the Uganda Government vest solely in the President and that the Concultativa Council has no valid powers to ratify and a prove such appointments.

(3) That the procedure followed in removing the Chairman of the Executive Committee of UNLF and thus as President of the Republic of Uganda was unconstitutional.

That the National Consultative Council has no powers to remove $(4)$ the President from his Office. $\tilde{t} = \tilde{t} \cdot \tilde{t}$

$-13 -$

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(5) That when deciding upon matters of national interest the Nations. Consultative Council must sit in the Legislature and be governed and guided by the Constitution of $\texttt{U}\textsc{g}$ and

In his submission $\text{Mr}_\star$ Katende counsel for the 3rd defendant stated that although this action is a representative action the ordinary rules of procedure apply to it. It was not a case of collect ive liability and therefore it was necessary for the plaintiffs to prove, on the balance of probability, a case against each of the 28 members of the Council. Secondly each member was entitled to come forward and defend himself. He submitted that the crucial point in this case is that the members voted Prof. X. R. Lule put of office. If it is not so established that the members voted Prof. Y. K. Lule out of office the action fails. It was argued on behalf of the 3rd defendant that he did not vote Frof. Y. K. Bule out of office because he cast a negative vote. Mr. Katende argued at length that the removal of Prof. Y. K. Zule did not offend the Constitution since certain chapters of the Constitution had been suspended and the application of UNLF party Constitution could not have offended the

He submitted further that the removal of Prof. $I_1$ Constitution. Lule was a revolution and must be recognized as such. He raised question of estoppel and that of the privilege of the members of under the National Assembly (Powers and Privileges) Act, Cap 249

$14$

These submissions were adopted by Mr. Byamugisha counsel for 1st and 2nd and other defendants and added that this court shoul make the declarations sought by the plaintiffs. Both learned coreferred to us quite a number of authorities to substantiate: the submissions.

I shall deal with these submissions according to numerical order of the declarations sought.

Firstly whether 1967 Constitution is the Supreme law of Uge or the UNLF Constitution and/or the Moshi Unity Conference Minute. It has been averred in the pleadings of the 3rd defendant that the 1967 Constitution was subject to the arrangements of the UNLP Constitution and the Minutes of the Moshi Conference. The 1st as 2nd defendants omit the Moshi Minutes in their pleadings as provi that should be read together with the 1967 Constitution. In his testimony PW2 Semogerere stated that the UNIE Constitution is a party constitution and could not be regarded as a National Consti tion to regulate the affairs of State because it is not part of

$15/...$

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municipal law of the land. Nor can the Moshi Minutes be part of the law of the land without their being incorporated in the laws of Uganda. DW1 Sempebwa seems to subscribe to the opinion that the UNLF Constitution is part of the Constitution of Uganda, and according ly. the 1967 Constitution should be read subject to the UMLF Constitution. He concludes that Prof. Y. K. Lule was properly removed from office by virtue of article 5.5 (m) of the UKLF Constitution.

$-15 -$

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In order to arrive at a reasonable decision one has only to look at Legal Notice No.1 of 1979 to see whether the UNLF Constitut: is part of the municipal law since the 1967 Constitution and Decree No.5 of 1971 were in existence before the formation of UMLP in Marci. 1979. The only reference one can find in Logal Notice No.1 of 1979 is in the preamble of that Legal Novice. It reads:

> Whereas the Uganda National Diberation Front was committed to the achievement of the objectives specified in Article II of its Draft Constitution".

It is not known whether Article II of the Draft Constitution, referra to in the preamble is still the same as the approved UNIF Constitution since the Legal $\text{N}_\text{O} \text{tice}$ came into force the UNLF Constitution

$16/$ ...

A LIPE. was approved. Be that as it may, on the assumption that it is identical with the approved version Article II reads as follows:

$-16 -$

## "Guiding Principles"

- "The guiding, principles of the Front shall be: $2.1$ - $(a)$ National Unity - $(b)$ $D_{\text{emocracy}}$

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- $(c)$ National Independence and - $(d)$ Social Progress".

It seems to me that the above is the only part of UNLF Constitute referred to in our laws. It was not intended therefore, to incom If ItN the whole of the UNLF Constitution in the laws of Uganda. intended to be part of the laws of Uganda it should have been so stated in no uncertain terms. It is my opinion, however, that may appears in a preemble of a statute or in any legal enactment is a part of the law of the land. The purpose of a preamble is to independent the purpose and intention of the statute but does not form part of the statute.

In regard to the question whether Frof. Y. K. Lule as Presider of Uganda was enjoined to submit ministerial appointment to the 4 for ratification one has again to go back to the Constitution. I said before Chapter IV and V of the 1967 Constitution were suspended.

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by the Legal Notice Nc.1 of 1979. With that suspension went the pass of the President in regard to appointments of Ministers and Deput-Ministers. However, the powers of the President were still retain under the Constitution (Modification) Decree No.5 of 1971. Under Section $3(1)$ of the Decree it is provided:

$-17 -$

"The President may appoint Ministers

and Deput Ministers".

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Again under section 2 of Legal Notice No.1 or 1979 already referred to above the President's powers seem to have been saved by the provsions of that section. It is manifest, therefore, that the Presiden was under no obligation to submit ministerial appointment or any appointments to the public office for that matter to the Council for ratification or approval. Nevertheless I cannot shut my eyes completely to the purpose and intention of the Legal Notice No.: of 1979. The preamble of that Logal Notice scen to make it clear UNLF administration should take in account the Moshi Spirit in orch to achieve the objective of UNLF. These objectives as ensurined IN article 2 of the UNLF Constitution were to focter national unit". democracy, national independence and social progress. The essence of those noble principle was and still is taken to eliminate once

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$-18 -$

The question whether the Council adopted the right procedure remove Prof. Y. K. Lule is pregnant with difficulties. It must understood that the Council had two important functions namely party function of the UNIF and the function of the Legislative b **Ktle** This dual role was further complicated by the dual role of the $\hat{\mathbf{J}}$ Chairman of National Executive Committee and at the same time the President of the Republic of Uganda. The complication arose from eru: A duality. Its procedure was further complicated by the choice of for the sitting of the Council. There was no burd and fast rules OB. procedure drawn up to guide the Council in its dual role. In art there was no separation of legislative functions which was nation from party functions of the Council. It transpired that when the Council sat in State House, Entebbe on 19th and 20th June 1979 wh procedure was somewhat unidentifiable and fluid. No wonder that

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Sembowa and Semogerere differed on this issue. Sempehwa stated that $|h_2|$ ouncil sat as a Legislature, while Semogerere said it sat as an COMM of the UNLF. This difference was more underlined by the fact that the same set of Rules used by the Council as an organ of the JAP were used by the same Council sitting as a Legislature The document containing the Rules is headed,

$-19 -$

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Although the document is so headed, it seems to me, however, that timese Rules were meant for use by the Council in its legislative flenction. There are references to the Chairman/Head of State, LCinguage of the proceedings, Sessions and time of meetings Etc. All these indicate that the Rules were meant for a legislative body. The confusion was confounded at the meeting of 19/20th June by invoking article V 5.4(a) (IV) of the UNLP Constitution which is a $\bar{\rho} {\tt arity}$ constitution to demand compliance from the Chairman to Submit political appointments to it for ratification.

From the foregoing it seems clear that the Council did not si 🟒 a legislative body on 19th and 20th June, but as an organ of 📷 This being so the Council had powers to remove the Chairman of National Executive Committee as such. The Council as an organ. the right to adopt any Rules to regulate its procedure while deals with purely a party matter as it did in this case. It is a diffi $\frac{1}{2}$ do $\frac{1}{2}$ proposition when it comes to the removal of the President. with Mr. Katende when he submitted that the Constitution was not offended when the President was removed. None of the provisions $\frac{g}{2}$ of the Constitution were invoked in that exercise. However, I is agree with his submission that the members had no collective responded to the members and no collective responded. bility, and that no such responsibility should be imputed to there When an act is done, or a statute enacted by any legislative body does not expect unanimity, Some members may vote against and some $\n \gamma_{\text{r}}\n$ abstain, but it is the majority that counts. It cannot be said it was not an act of partliament and that the members of who voted or abstained are absolved from that collective responsibility conditions. upon them by the nature of their duties.

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Now I come to the fourth declaration sought-to-be made namely that the National Consultative Council has no powers to remove the President from office. I have already stated that the Constitution of Uganda is found in three documents, the 1967 Constitution as modified by the Legal Notice No.1 of 1979 and the Constitution (Madification) Decree No.5 of 1971. We have seen the powers confirmed upon the President and the role of the Council under the Constitution I have also stated that the UNLF Constitution and the Minutes of the Moshi Unity Conference are not part of the laws of Uganda. It was under the provisions of the UNLF Constitution, to be specific, Article V 5.5. (k) that was invoked and applied for the removal of the President. It had been argued by Mr. Katende that the justification of the removal of the President by the Council lay in the fact that it was a revolution. This proposition was also taken up vigorously by Mr. Byamugisha in his juordoff They argue that the Council had powers to remove the President and those powers emanated from the state of revolution,

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A number of authorities were cited to us to substantiate their argument. <u>Uganda v. Commissioner of Prisons Ex Parte Matovu</u> (1966)

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E. A. 514. Luther v. Borden (1849) I How I. The State v. and Another (1958) 2 Pakistan Supreme Court Report 180. The R of Law and State by Kelson at page 117 and several others but if will suffice for our purpose. Apart from Doseo (supra) all other authorities were dealt with in Ex parte Matovu (supra). It was in Matovu's case,

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"On the theory of law and state propounded positivism school of jurisprudence represented by the famous Professor Kelson, it is beyond question and we hold, that the series of events which took place in Uganda from February 22 to April 1966 when the 1962 Constitution was abolished in the National Assembly and the 1966 Constitution adopted in its place, as a result of which the then Frime Minister was installed as Executive President with power to appoint a Vice-President could only appropriately be described in law as a revolution. These changes had occurred not in accordaance with the principle of legitimacy but deliberately contrary to it. These were not pretensions on the part of the Prime Minister to follow the procedure prescribed by 1962 Constitution in particular for the removal of the President and the Vice-President from office".

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Kelson postulates in his book, there must be 4 conditions one of them is, "the change must destroy the entire legal order". From evidence before us the legal order that prevailed before the removal of Prof. Lule remained the same. The Constitution also remained the Has stag same. The fact that there was a concetration of troops at the State House, at the time of voting Prof. Lule out of office, does not necessarily make the event a revolution to justify Kelson's theory which is internationally acceptable. The events and the facts in the

present-case are quite different from the circumstances that created the events and facts in Matovu's case. In Matovu's case all the norms of the old order had been deprived of their validity by a revolution and not according to the principles of legitimacy. Here all the norms of Lule's administrations remained intact except for a new president.

**HARRY MALE TO THE REAL PROPERTY AND THE TOP SERVED AND THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF THE TOP OF T**

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movements in order to establish a revolution what is necessary as

It must be mentioned that it is not necessary to have troops

The alternative to that argument was the claim of the privileges of members of the Mational Assembly under the Mational Assembly (Power and Privileges) Act cap 249. The only section under the Act which deals with immunity from legal proceedings is section 3 which reads:

> "No civil or criminal proceedings may be instituted against any member for words spoken before, or written in a report to, the Assembly or to a committee, or by reason of any matter or thing brought by him therein by petition, bill, motion or otherwise".

$\boldsymbol{I}$ cannot read in this section anything prohibitive as to the institution of any action of this nature. In any case as point above the Council did not meet as a legislature and therefore members cannot avail themselves of the provisions of the section

$\overline{24}$

As regards the argument that the plaintiffs are estopped i bringing the action because of their active participation in the motion that removed Prof. Lule from office I am of the opinion the doctrine of estoppel to apply there must be an intention on part of the person who caused the act or omission to be believed the act or omission is genuinely true. Here it is not the case the evidence already reviewed shows.

Lastly it has been argued by both counsel for the defence 7 this Court has no pwers to make the declarations sought to be made Several authorities were cited to us. The Judicature Act 1967 is confer wide jurisdiction to this Court in regard to interpretation and enforcement whenever there is need for the interpretation of provisions of the Constitution. Also Order 2 rule 7 of the Civil Procedure Rules does so confar such powers. I have read the

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$-25$ authorities cited to us. Jam of the opinion that while Jogrethey may be relevant to the circumstances of those particular cases but they are not relevant here in light of the provisions above mentioned.

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I would therefore make the following declarations:-1. The Constitution of 1967 is the Supreme Law of Uganda; 2. The power to make ministerial appointments vested solely in the President and the National Consultative Council had no and has no valid powers to ratify and approve such appointments; and

3. The National Consultative Council acting in its capacity as the logislature had and has no power to remove the President from office.

Other declarations sought are refused.

I would also order that the defendants small jointly and severally pay the costs of the 2nd plaintiff. There will be no order as to costs of 1st plaintiff. I hope costs will be paid from Public Funds.

DATED AT KAMPALA this 21st day of October, 1980.

D. L. K. Lubogo JULFICZ OF APPEAL

$\mathcal{M} \leftarrow \mathcal{M} \leftarrow \mathcal{M} \leftarrow \mathcal{M} \leftarrow \mathcal{M}$ KREENDAY J. DINBLAN