ATHANASIUS K LULE v HON EMMANUEL PINTO
CONSTITUTIONAL COURT CONSTITUTIONAL PETITION NO. 5 OF 1997
(CORAM: MANYINDO, D.C.J., KATO, J.A., BERKO, J.A.,
ENGWAU, J.A., KIREJU, J.A.)
JANUARY 27, 1998
The petitioner brought a petition under Article 80 of the Constitution of the Republic of Uganda,1995, that the respondent was not academically qualified to be nominated and elected as a member of Parliament and was therefore, sitting in Parliament illegally. Counsel for the respondent raised four preliminary objections: that Article 80(1)(c) of the Constitution, under which the petition was brought, neither created jurisdiction for, nor gave any litigant a right of access to the Constitutional Court on matters concerning elections of members of Parliament; that the petition was time barred as it was filed on April 11, 1997, instead of either thirty days after nominations in May 1996, or declaration of the results of the elections in June 1996; that court had no jurisdiction to entertain the petition and is therefore, not competent to make the declaration prayed for in the petition and; that the petitioner had no locus standi to bring the petition.
Held: (i) a constitutional petition can only be brought by reference sue motu by a trial court on an application of the party to the proceedings before the trial court under Rule 2 of the Interpretation of the Constitution (Procedure) Rules, 1992 (Modification) Directions, 1996 and clause 5 of Article 137 of the Constitution or, under the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Directions, 1996 where an aggrieved person has a direct right of access;
(ii) rules of procedure are handmaids to justice and, accordingly, they should be applied with due regard to the circumstances of each case. A litigant who wishes to rely on Article 126(2)(e) of the Constitution must satisfy the court that in the circumstances of the particular case before the court it is not desirable to pay undue regard to a relevant technicality;
(iii) election petitions should be filed within thirty days after the declaration of the result of the election according to Rule 5(1) of the Parliamentary Elections (Election Petitions) Rules;
(iv) a person aggrieved due to irregularities in the electoral process can either submit a written complaint to the Interim Electoral Commission of the Parliamentary elections for investigation and determination or petition the High Court under Article 86 of the Constitution. There is a right of appeal from the Commission’s decision to the High Court and likewise from the High Court to the Court of Appeal under Article 86(2) of the Constitution, whose decision is final under Article 96(3) of the Constitution. Court being a creature of statute whose jurisdiction is given by law, court can only hear the petition and grant the declaration prayed for in this case;
(v) for a person to present an election petition, he should either be a candidate who lost an election or a registered voter in the constituency concerned supported by the signatures of not less than five hundred voters registered in the constituency.
Preliminary objections upheld. Petition struck out.
REFERENCES
Cases referred to:
Kasirye Byaruhanga & Co Advocates v Uganda Development Bank, Civil Application No 2 of 1997 (SC) (unreported)
Utex Industries Ltd v Attorney General, Civil Application No 52 of 1995 (SC) (unreported)
Legislation referred to:
Constitution of the Republic of Uganda, 1995, Articles 80, 86(2), 126(2)(e), 137(5)
Judicature Statute, (No 13 of 1996)
Interpretation of the Constitution (Procedure) Rules, 1992 (Modification) Directions, (Legal Notice No 3 of 1996), rule 2
Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure), Rules, 1992, Directions, (Legal Notice No 4 of 1996), section 1
Parliamentary Elections (Election Petitions) Rules, 1996, rule 5(1)
Parliamentary Elections (Interim Provisions) Statute, (Statute 4 of 1996), section 15(1), 15(2), 15(3), 90(2), 96(3)
