CONSTITUTIONAL COURT CONSTITUTIONAL PETITION NO. 1 OF 1999
(CORAM: MANYINDO, D.C.J., MPAGI – BAHIGEINE, J.A.,
BERKO, J.A., ENGWAU, J.A., KITUMBA, J.A.)
JUNE 15, 1999
On April 19, 1998, the petitioner was elected Mayor of Kampala City under the Local Government Act for a period of four years. On February 24, 1999, he was sentenced to fifteen month’s imprisonment by the United States of America District Court of Massachusetts, and filed a notice of appeal to the United States Court of Appeal. The first respondent declared the mayoral seat of Kampala vacant and that electoral proceedings should commence to fill the vacancy. The clerk to the third respondent notified the second respondent that the vacancy for the post of Mayor of Kampala occurred on February 24, 1999, the day the petitioner was sentenced to fifteen months’ imprisonment. The second respondent issued a press release informing the general public of the communication from the third respondent that the mayoral seat of Kampala District had been declared vacant and therefore, in accordance with sections 102 and 172 of the Local Government Act, the second respondent was making preparations for filling the said vacancy. The second respondent by a press release published the programme for the bye-election and, according to the said programme polling day was due on June 20, 1999.The petitioner then filed a petition against the respondents under Articles 50 and 137 of the Constitution and under the provisions of the Modification to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, 1996 that the acts of declaration of vacancy of the mayoral seat were invalid and contrary to the Constitution and that the petitioner could not be removed from office through the process adopted and carried out by the respondents, and is therefore, entitled to continue to be and still is the Mayor of Kampala and Chairperson of Kampala District, and sought an injunction restraining the second respondent from conducting any by-election for Chairperson or Mayor of Kampala District until after the seat lawfully became vacant or any other relief the court would deem appropriate under the circumstances, with costs of the petition. At the commencement of the hearing, counsel for the first and second respondent raised five preliminary points of objection to the petition. That court lacked jurisdiction to entertain the petition as the petition sought the interpretation of the Local Government Act rather than the Constitution and that since there was no averment in the petition that the provisions of the Local Government Act referred to were inconsistent with the Constitution, court lacked jurisdiction in the matter; the petition did not disclose a cause of action against the first and second respondent as the first respondent had given advisory, rather than directory instructions and the second respondent was merely carrying out its statutory duties under the electoral law and Local Government Act; the petition was time-barred since it was filed more than thirty days from the dates of the two letters of the Solicitor General and Permanent Secretary constituting the acts complained of; that the petitioner was not justified in coming to the court as he could have had recourse to other courts for other remedies enforceable by those courts under Article 50 of the Constitution and; that one of the two affidavits in support of the petition did not disclose the source of information. Counsel for the third respondent associated himself with the submissions of counsel for the first and second respondents.
Held: (i) provisions of a Constitution cannot be diluted by incorporation into an Act of Parliament and neither can a court lose jurisdiction merely because the Local Government Act has incorporated certain Articles of the Constitution;
(ii) a cause of action means every fact, which if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgement of the court. It must include some act done by the defendant and, it is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove the facts but every fact necessary for the plaintiff to prove to enable him to obtain decree and, everything that if not proved would give the defendant a right to an immediate judgement must be part of the cause of action. It has no relation to the defence, which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. The cause of action must be antecedent to the institution of the suit;
(iii) where a period of limitation is imposed, it begins to run from the date on which the cause of action accrues. A petition must be lodged within thirty days after the date of the breach of the Constitution complained of in the petition in accordance with rule 4(1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, 1996. A constitutional petition is incompetent if it is brought out of time unless the time has been extended in accordance with Order 7, rule 6 of the Civil Procedure Rules. Where a plaint, as the petition in this case, does not plead disability as an exemption from limitations as required by Order 7, rule 6 of the Civil Procedure Rules, such failure is fatal to the claim outside limitation and must be rejected according to Order 7, rule 11 of the Civil Procedure Rules as barred by law.
Petition dismissed with costs
Cases referred to:
Dr. James Rwanyarare & Anor v Attorney General, Constitutional Court Constitution Petition No 11 of 1997
Eridad Otabong v Attorney General, Civil Appeal No 6 of 1990(SC); (1990), ULSLR 150
Major General David Tinyefunza v Attorney General, Constitutional Appeal No 1 of 1997 (SC) (unreported)
Legislation referred to:
Civil Procedure Rules, (SI 65-3), Order 7, rules 6 and 11
Constitution of the Republic of Uganda, 1995, Articles 2, 50, 60, 61, 80, 83, 126, 137, 183, 186(6), 257
Electoral Commission Act, (Act 3 of 1997), section 15(1)
Government Proceedings Act, (Chapter 69)
Local Government Act, (Act 3 of 1997), sections 102, 172, 173
Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, (Legal Notice No 4 of 1996), rule 4(1)
Counsel for the petitioner: Mr. Lule.
Counsel for the first and second respondents: D. Byamugisha and C. Barishaki (State Attorneys).
Counsel for the third respondent: S. Jehoash.
