[2003] UGCC 1

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

### HON. MR. JUSTICE G. M. OKELLO, JA. CORAM: HON. LADY JUSTICE A. E. MPAGI BAHIGEINE, JA. HON. MR. JUSTICE S. G. ENGWAU, JA. HON. LADY JUSTICE C. N. B KITUMBA. 1A. HON. LADY JUSTICE C. K. BYAMUGISHA, JA.

### **CONSTITUTIONAL APPLICATION NO. 6 OF 2002**

### **BETWEEN**

- 1. DR. JAMES RWANYARARE - 2. HAJI BADRU KENDO WEGULO - 3. HON. YUSUF NSUBUGA NSAMBU - 4. HON. KEN LUKYAMUZI - 5. JAMES GARUGA MUSINGUZI - 6. MAJOR RUBARAMIRA RURANGA - 7. FRANCIS GUREME - 8 KARUHANGA CHAAPA - 9. HUSSEIN KYANJO - **10. DR. JOHN JEAN BARYA**

$=======APPRICANTS$

#### AND

#### ATTORNEY GENERAL $\equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \equiv \$

(Arising from Constitutional Petition No. 7 of 2002)

### RULING OF THE COURT:

This is an application brought by the above Petitioners/ Applicants arising from the Constitutional Petition No. 7 of 2002. In the application, the applicants are seeking an order suspending or staying the operation of section 6 $(3)$ and $(4)$ of the Political Parties and Organizations Act No. 18 of 2002

pending the final disposal of the Constitutional Petition no. 7 of 2002.

The application is brought by notice of motion under the provisions of articles 50, 126 and 137 of the 1995 Constitution of Uganda; section 35 of the Judicature Statute No. 13 of 1996; sections 65 (e) and 101 of the Civil Procedure Act, (Cap. 65); Order 37 Rules 1 and 2 of the Civil Procedure Rules and rules 4. 10 and 13 of the Rules of the Constitutional Court (Petitions for Declarations under article 137 of the Constitution) Directions L. N.4 of 1996.

The application is supported by the affidavit of Dr. James Rwanyarare, one of the Petitioners/Applicants and based on the following grounds:

- $(i)$ The Constitutional Petition $No.7$ $of$ 2002 challenges the constitutionality of section $6$ (3) and (4) of the Political Parties and Organizations Act, 2002 which compels the existing parities mentioned in Article 270 of the Constitution to register as bodies corporate within six months of commencement of the Act or cease to legally exist as unconstitutional and this challenge is yet to be resolved by the Constitutional Court which is still handling Constitutional Petition No. 5 of 2002 filed by Dr. Paul Kawanga Semwogerere and others. - $(ii)$ That given the busy schedule of the Constitutional Court it is unlikely that the said Court would hear and finally dispose of the applicants' petition before $16^{\rm th}$ January, 2003 the deadline for registration of existing political parties and in that event the petitioners' challenge to section $6$ (3) and (4) of the Political Parties and Organizations Act, 2002 would be rendered nugatory.

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- That if no temporary reliefs are given pending the $(iii)$ the inherent petition, $of$ their disposal fundamental rights of Ugandans who belong to the existing political parties to associate and assemble under their existing political parties will be violated, and - That if the orders sought are not granted, part of $(iv)$ the applicants' petition will be rendered nugatory thus depriving them the right of access to courts of law and a speedy and fair adjudication of their rights.

In our view, the pertinent question in this application is whether or not the Constitutional Court has jurisdiction to suspend or stay the operation of any law including section 6 $(3)$ and (4) of the Political Parties and Organizations Act, 2002.

The respondent submits that there is no law that gives this court power to suspend or stay the operation of section 6 $(3)$ and (4) of the Political Parties and Organizations Act or any other law. It is the respondent's contention that by asking this court to suspend or stay a provision of an Act of Parliament amounts to requesting it to repeal the law. In his view, legislation is the preserve of Parliament as provided by Article 79 of the Constitution. The Respondent argues that this court has powers under Article 137 (4) of the Constitution to grant an order of redress in addition to a declaration but that there is no provision under article 137 which allows this court to order for the suspension or stay of the provision of the Act which is being challenged. The redress referred to can only be granted as a result of interpretation under Article 137 of the Constitution. See: Constitutional Appeal No. 1 of 1997, Attorney General Vs. David Tinyefuza.

On the other hand, Mr. Peter Walubiri, learned counsel for the applicants, submitted that the Constitutional Court has powers under Article 137 (4) of the Constitution to grant an order of redress in addition to a declaration. We agree with him. The clause empowers this court to grant an order of redress where it considers necessary upon interpretation of the Constitution.

Mr. Peter Walubiri submitted that this court is also a competent court to grant redress under Article 50 of the Constitution where a fundamental right or freedom guaranteed under the Constitution is infringed or threatened. He said that in the Constitutional Petition No. 7 of 2002, now pending before this court, the petitioners allege that the Political Parties and Organizations Act is unconstitutional because it threatens and violates their rights and freedom to assemble and associate. In his view, these threats and violations call for redress after interpretation.

In reply, the respondent submitted that the Constitutional court can only be moved to grant redress under Article 50 of the Constitution if the matter is brought to it under Article 137. The respondent cited the case of Ismail Serugo Vs. KCC and Attorney General, Constitutional Appeal No. 2 of 1998 Mulenga, JSC had this to say at page 19 of his where judgment:

"It follows that a person who seeks to enforce a right or freedom guaranteed under the Constitution by claiming infringement threatened for its $or$ redress infringement, but whose claim does not call for interpretation of the Constitution, has to apply to any The Constitutional court is other competent court. competent for that purpose only upon determination of a petition brought under Article 137 (3)."

In view of the above holding, we think that this court is competent to grant redress under Article 50 of the Constitution where a fundamental right or freedom guaranteed under the Constitution is infringed or threatened upon determination of a petition brought under Article 137 (3) of the Constitution.

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It is the contention of the respondent that rule 13 of Legal Notice No. 4 of 1996 does not enjoin this court to apply the provisions of the Judicature Statute.

Section 65 (e) of the Civil Procedure Act reads:

# " In order to prevent the ends of justice from being defeated the court may, if so prescribed, make such other interlocutory orders as may appear to the court to be just and convenient."

The respondent's argument is that the above section cannot be used as a basis for grant of an interlocutory order unless the same is prescribed by the Civil Procedure rules. According to section 2 of the Civil Procedure Act, "**prescribed**" means prescribed by the rules.

The respondent also argues that section 35 of the Judicature Statute No. 13 of 1996 upon which the applicants seek to rely does not apply to the Constitutional Court. In his view, the section specifically empowers the High Court to grant remedies to a party entitled to such remedies.

Further, the respondent is of the view that section 101 of the Civil Procedure Act deals with the inherent powers of the court and should not be invoked to grant a remedy that is expressly prohibited by the law i.e section 15 of the Government Proceedings Act.

As regards Order 37 of the Civil Procedure Rules which deals with the grant of Injunctions, the respondent's argument is that under section 15 (2) of the Government Proceedings Act. an injunction cannot issue against the Government. It is also submitted that the Court of Appeal Rules are not applicable in view of rule 13 (1) and (2) of Legal Notice No. 4 of 1996.

We do note that rule 13 of Legal Notice No.4 of 1996 empowers this court to apply with necessary modifications and adaptations the Civil Procedure Act and rules made thereunder

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when dealing with constitutional petition. We agree with counsel for the respondent that section 65 (e) of the Civil Procedure Act and section 35 of the judicature Statute No. 13 of 1996 do not provide to this court the legal authority to grant the order sought. Nevertheless, we think that this does not take away the inherent jurisdiction of the court under section 101 of the Civil Procedure Act or rule 1 (3) of the Rules of this court to make such orders as may be necessary to meet the ends of justice or to prevent abuse of its process.

It is our view that this matter is properly brought before this court. In the Constitutional Petition no. 7 of 2002, there is allegation that the Applicants/Petitioners' fundamental rights are being threatened by the impunged provisions of the Political Parties and Organizations Act. Because of its busy schedule, this court could not reach and dispose of the Petition within time. In the premises, should this court fold its hands to allow the Petitioners to fade off without deciding their complaint brought before it on the ground that court is busy?. We do not think so because that would be outrageous. Court is not to turn away a litigant without deciding on his or her complaint. It must give redress to meet the ends of justice as the circumstances of the case dictate.

# "Whether an injunction can issue against the government".

Section 15 (2) of the Government Proceedings Act, Cap 69, provides:

> " The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the $of$ effect granting the injunction or making the order give any relief against the be to would Government which would not have been obtained in proceedings against the Government."

It was argued by the respondent that to grant the stay or suspension of the provisions of section $6$ (3) and (4) of the Political Parties and Organizations Act would amount to granting an injunction against the Government, an order which is prohibited by the Government Proceedings Act, Cap 69. Attorney General Vs. Silver Springs Hotel & Others, Civil Appeal No. 1 of 1989 where the Supreme Court held that an injunction cannot issue against the Government under the laws of Uganda was cited as authority.

On the other hand, Mr. Peter walubiri contended that a stay or suspension of the operation of a law to stop the violation of peoples rights and freedoms is not an injunction against the Government. In his view, the order being sought is merely to preserve the status quo as the constitutionality of the law in question is being investigated.

We are doubtful if the decision in **Attorney General Vs.** Silver Springs Hotel & Others (supra) which was decided before Uganda's 1995 Constitution came into force is still good law. In our view, the 1995 Constitution has ushered in the administration of justice a fundamental change. Article 126 (1) provides:

# "Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people."

This, in our view, is an important innovation in our administration of justice because the emphasis now is on the people. Judicial power is now derived from the sovereign people of Uganda and is to be administered in their names. This been previous contained in had never any provision Constitutions of this country. This must have been for a purpose. The purpose is to break away from the past colonial practice. Like that of many other former British dependencies, the previous Ugandan Constitutions were drafted against the background of English historical practice. Judicial authority

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was created in those Constitutions as institutions performing functions similar to those performed by the courts in England and local colonial courts. Courts in England were and still exercise their judicial powers in the name of the Crown. That explains the rationale behind section 15 (2) of the Government Proceedings Act. The Crown cannot issue an injunction against itself. See: Olive Casey Jaundoo Vs. Attorney General of Guyana [1971] AC 972.

That argument cannot hold under the present Constitution when judicial power is derived from the people and is exercised by courts in the name of the people. There is no sound reason under the Constitution why Government should be given preferential treatment at the expense of an ordinary citizen. That provision of the Government Proceedings Act is an existing law which under article 273 (1) should be construed with such modifications, adaptations as may be necessary to bring it into conformity with the Constitution.

In the Canadian case of Levesque Vs. Attorney General of Canada et al (1985) 25 DLR 184, a serving prisoner claimed and sought to enforce a right to vote. It was held that he had such a right, and the question arose whether an order of mandamus would issue to enforce it. Rouleau J held (at pages $191 - 192$ :

" If the Canadian Chatter of Rights and Freedoms, which is part of the Constitution of Canada, is the supreme law of the country, it applies to everyone, including the Crown or a Minister acting in his capacity as $\mathbf{a}$ representative $\quad\textbf{of}\quad$ the Crown. Accordingly, a fortiori the Crown or one of its representatives cannot take refuge in any kind of declinatory exception or rule of immunity derived from the common law so as to avoid giving effect to the Chatter".

The Crown was held to be subject to the provisions of the Chatter in the same way as any other individual.

In an Indian case of N. Nagendra Rao and Co Vs. State of A. P. AIR (1994) SC 2663, R. M. Sahai, J (in paragraph 24 of his judgment) said:

"No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity."

In an Irish case of Byrne Vs. Ireland and The Attorney General [1972] IR 241 at 281, Walsh, J. in the Supreme Court $s:$

" Where the people by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals. There is nothing in the Constitution envisaging the writing into it of a theory of immunity from suit of the State (a state set up by the people to be governed in accordance with the provisions of the Constitution) stemming from or based upon the immunity of a personal sovereign who was the keystone of a feudal edifice. English common - law practices, doctrines, or immunities cannot qualify or dilute the provisions of the Constitution."

In other words, in Ireland it has been clearly held that the State, under its independent constitution does not enjoy the historic immunity of the Crown.

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We find those decisions of other jurisdictions very persuasive and pertinent to the matter before us in view of the 1995 Constitution whose article 1 $(1)$ provides:

# "All power belongs to the people who shall exercise their sovereignty in accordance with the Constitution".

In the result, there is merit in this application which we allow with an order that the operation of section $6$ (3) and (4) of the Political Parties and Organizations Act be stayed pending the final disposal of Constitutional Petition No. 7 of 2002. Costs shall abide the result of the petition.

Dated at Kampala this $-\frac{16}{10}$ day of $-\frac{1}{2003}$ . **G. M OKELLO** JUSTICE OF APPEAL. A. E. MPAGEBAHIGEINE JUSTICE OF APPEAL. S. G. ENGWAU JUSTICE OF APPEAL. Cres Kitums C. N. B. KITUMBA JUSTICE OF APPEAL. C. K. BYHAMUGISHA JUSTICE OF APPEAL.