Here is the full judgment by the Constitutional Court

Constitution Petition NO. 38 of 2010

George Owor (Petitioner) vs
1.The Attorney General
2. Hon. William Okecho (Respondents)

INTRODUCTION:

The petitioner filed a petition in which he made the following averments:

1)  That your petitioner is a male adult Ugandan of sound mind and an ardent believer in the Rule of Law and Constitutionalism.

2)     That your petitioner is interested in and/or aggrieved by the following matters being inconsistent with the Constitution whereby your petitioner is aggrieved:

The act of 2nd respondent contesting in the National Resistance Movement Party Primary Elections when he returned the National Resistance Movement Membership Card in 2006, stood as an Independent and was elected Member of Parliament of West Budama North Constituency as an independent candidate is inconsistent with and/or in contravention of articles 1(1)(2)(4), 2(1)(2), 3(1)(2), 4(a)(b), 20(1)(2), 21(1), 43 (1) (2)(c), 45, 72(4)(5), 83(i)(g)(h), (3) and 81(4) of the Constitution of the Republic of Uganda, 1995.

b. The act of the 2nd respondent continuing to sit in Parliament as an Independent member of Parliament having joined the National Resistance Movement, a Political Party and contested in the said National Resistance Movement Party elections on 30-8-2010 is inconsistent with and/or in contravention of articles 1(1)(2)(4), 2(1)(2), 3(1)(2), 4(a)(b), 83(i)(g)(h), (3) and 81(4) of the constitution of the Republic of Uganda, 1995.”

The petitioner prayed for the following declarations and orders:

A declaration that the act of the 2nd respondent standing in the National Resistance Movement Party Primary Elections when he returned the National Resistance Movement Membership Card in 2006, stood as an independent and was elected member of Parliament of West Budama North Constituency as an Independent candidate is inconsistent with and/or in contravention of articles 1(1)(2)(4), 2(1)(2), 3(1)(2), 20(1)(2), 21(1), 43(1)(2)(c), 45, 72(4)(5), 83(i)(g)(h), (3) and 81(4) of the Constitution of the Republic of Uganda, 1995.

A declaration that the act of the 2nd respondent standing in the National Resistance Movement Party Primary Elections while having joined the National Resistance Movement, a political party and contested in the said National Resistance Movement Party Elections on 30-8-2010 is inconsistent with and/or in contravention of articles 1(1)(2)(4), 2(1)(2), 3(1)(2), 20(1)(2), 21(1), 43(1)(2)(c), 45, 72(4)(5), 83(i)(g)(h), (3) and 81(4) of the Constitution of the Republic of Uganda, 1995.

A declaration that the 2nd respondent ceased being a member of Parliament and or vacated his seat in Parliament upon joining the National Resistance Movement Party in or around August 2010.

A declaration that the 2nd respondent unconstitutionally continues to draw emoluments, salaries, privileges and/or allowances since his vacation of Parliament and he should refund to the consolidated fund all such public funds.

A declaration that the 2nd respondent’s candidature in the National Resistance Movement Party Primaries was unconstitutional ab initio for contravening article 83 (h).

A declaration that the 2nd respondent is not qualified to stand as candidate be it as an Independent candidate or on a political party ticket. An injunction restraining the respondent’s unconstitutional actions.

An injunction restraining the 2nd respondent from continuing to contravene the Constitution by purporting to stand in any election as Member of Parliament on dual identities.
Costs of this petition.”

The petition is accompanied by an affidavit ‘sworn by the petitioner and filed in this Court on 14th September 2010 in which he narrates the background to the petition and the reasons that led him to file the petition.

The respondents filed answers to the petition which are also accompanied by affidavits in which they deny liability and pray that the petition be dismissed due to the fact that it does not raise any issues for constitutional interpretation.

THE ISSUES:

The parties held a Scheduling Conference before His worship, Asaph Ruhinda Ntengye, the Registrar of this Court on 3rd November 2010 and framed the following issues for determination by this court.

1. Whether the petition raises issues for constitutional interpretation.
2. Whether the act of the 2nd respondent contesting NRM Party Primary Elections having been elected as an Independent member of Parliament for West Budama North is inconsistent with and/or is in contravention of . Articles 83(1)(h)&(g), 1(1)(2)(4), 2(1)(2), 3(1)(2), 4(a)(b), 20(1)(2), 21(1), 43(1)(2)(c), 45, 72(4)(5) and 81(4) of the Constitution of the Republic of Uganda, 1995.

3. Whether act of the 2nd respondent continuing to sit in Parliament as an Independent member of Parliament having joined the NRM political party is inconsistent with and/or is in contravention of articles 83(1 ) (h) &(g), 1(1)(2)(4),2(1)(2),3(1)(2), 4(a)(b), 20(1)(2), 21(1), 43(1)(2)(c), 45, 72(4)(5), 83(i)(g)(h), (3) and 81(4) of the Constitution of the Republic of Uganda, 1995.
4. Whether the petitioner is entitled to the remedies prayed for.

REPRESENTATION

At the trial of this petition, Dr. James Akampumuza represented the petitioner and Mr. Richard Adrole, a State Attorney and Ms Eva Kabanda, also a State Attorney, jointly represented the first respondent. Mr. Alfred Okello Oryem represented the second respondent.

THE CASE FOR THE PETITIONER

Dr. Akampumuza contended that the petition discloses issues for constitutional interpretation which were agreed upon during the scheduling conference and which are now before the Court upon which constitutional interpretation is being sought.

He cited the Supreme Court decision in Baku Raphael Abudra and Obiga Kania vs The Attorney General Constitutional Petition No.1 of 2003 in which the Court per Kanyeihamba JSC (as he then was) stated:

In a number of cases Attorney General v Major General Tinyefuza, Constitutional Appeal No. 1 of 1997 (S.C) and Serugo v Kampala City Council, Constitutional Appeal No.2 of 1998 (S.C.) this court has expressed the view that in constitutional petitions brought under Article 137(3) of the constitution, a cause of action is disclosed if the petitioner alleges the act or omission complained of and cites the provision of the 20 Constitution which has-been contravened and prays for a declaration.”

He submitted that in this petition, the decision of the Supreme Court (Supra) and Article 137 of the 25 Constitution are complied with as the petition alleges and specifies the acts of the respondents which have contravened specified articles of the Constitution and prays for declarations and remedies. Counsel also cited other authorities to the same effect and called upon us to proceed and determine the petition as it was properly before us.

The gist of this issue is whether the 2nd respondent who is currently a member Parliament for North Budama Constituency where he was elected as an Independent can at the same time be nominated as a flag bearer of NRM Party when he has not resigned from Parliament as required by article 83 and other provisions of the Constitution.

Dr. Akampumuza submitted that there is no dispute that in 2006, the second respondent resigned his party membership from NRM in order to stand as an Independent. He was elected as an Independent and he has not yet resigned that position.

Yet, he has just been nominated as a flag bearer of NRM in the same constituency which is prohibited by the Constitution. He called upon us to decide this in the affirmative that the act of being nominated contravened the article specified in the issue.

The gist of this issue is whether the second respondent can continue to sit Parliament as an Independent representative of the people of North Budama Constituency while he is the nominated flag hearer of NRM Party.

In Dr. Akampumuza’s view, the conduct of the 2nd respondent contravenes the Constitution and he should be disqualified from sitting in Parliament as an Independent. Dr. Akampumuza submitted that because of the reasons he advanced in issues No.2 and 3 above, his client is entitled to all the remedies prayed for.

THE CASE FOR THE RESPONDENTS

Mr. Adrole, the learned State Attorney who represented the 1st respondent did not seek to contest the petition except on only the 1st and 4th issues of this petition.

On the 1st issue as to whether the petition raised issues for constitutional interpretation, he advanced a simple answer, to wit, that under article 86 of the Constitution, the 2nd respondent is still an Independent Member of Parliament since his seat has not yet been declared vacant by the Hon. Speaker of Parliament in accordance with that article.

Mr. Adrole argued that the petitioner did not use the remedies available under that article and therefore this petition is wrongly before this court and should be dismissed. He cited the case of Hon. Isha Otto

Awizi vs Hon. Betty Amongi and 26 others H.C Misc. Apl. No. 134 of 2010 in support of his arguments.

THE 2ND RESPONDENT

Mr. Okello Oryem argued issue No.2 and No.3
20 together. Though he appeared to concede that the conduct of the 2nd respondent contravened a set of articles of the Constitution as averred by the petitioner, yet in his view, it was consistent with another set of articles in the same Constitution, to wit, the National Objectives and Directions Principles of State Policy and Articles 1, 2, 20, 21, 29, 38, 40, 44, 45, 50, 61, 67, 69 and 83 of the Constitution. Next Page 2

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