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Revisiting the Odonga Constitutional Petition that could have stopped the Residents of Kampala from electing their Woman Member of Parliament.

By August 6, 2020September 20th, 2020No Comments

Odonga Alex Oryang Vs Nabillah Sempala, Attorney General And The Electoral Commission, Constitutional Petition No. 09 of 2016was a public interest petition filed in order to determine whether the office of the office of the Kampala District Woman member of Parliament is constitutional following the 2005 amendment of Article 5 of the 1995 Constitution of The Republic of Uganda which changed Kampala from a District to a City among othersA panel of five Judges of the Court of Appeal sitting as the Constitutional Court heard the petition; Honorable Justice Steven Kavuma, Honorable justice Richard Buteera, Hon. Justice Solomy Balungi Bossa, Hon Justice Cheborion Barishaki, Hon. Justice Paul Mugamba and Judgment was delivered on the 17th of January, 2018.

The background of this petition is that the 1995 Constitution was amended on the 26th of September, 2005 by The Constitution (Amendment) Act, 2005. This act among others provides for the administration of Kampala as a Capital City instead of a district. The amendment further refers to Kampala city and the districts of Uganda clearly drawing a distinction between Kampala city and districts in Uganda. The petitioner’s contention was that this change effectively abolished the seat of the Kampala District woman Member of Parliament. Odonga’s contention was premised on Article 78 Clause 1 which provides for one woman representative for each district in the Parliament of Uganda. Odonga emphatically stated that no woman representative is provided for a city. Odonga therefore argued that the Parliamentary Elections Act of 2005 which states that there shall be a women’s representative for every district or city in Parliament is inconsistent with the Constitution and further that the conduct of elections for the woman representative in Parliament for Kampala in the 2016 elections contravened the Constitution in accordance with Article 2 Clause 2 and Article 78(1) of the Constitution.

Nabillah Naggayi’s lawyer, Naboth Muhairwe of Agaba Muhairwe & Co. Advocates in his reply to the petition raised a number of arguments;

  1. That even though any person who alleges that an Act of parliament is in contravention with the provisions of the constitution can petition the Constitutional court for redress, the petition was intended to politically persecute Ms Nabillah Naggayi Sempala because the petition could be disposed off without joining her as a party. Counsel argued that the only role played by his client was to participate in a process organized by the Electoral Commission.
  2. That Section 8 (1) of the Parliamentary Elections Act is not in contravention with Articles 2 (1) and 78 (1) of the Constitution in accordance with the rules of constitutional interpretation. Counsel highlighted the liberal and purposive rule, the rule of harmony, completeness, exhaustiveness and the mischief rule.
  3. That if the constitution should be read as a whole, Court will find that the position of Kampala district woman mp was retained by the 2005 constitutional amendment and doesn’t contravene the constitution in any respects.
  4. That from the Parliamentary hansard, it is clear that the intention of Parliament was to retain the woman member of Parliament for Kampala even when its status was changed from a district to a city;
  5. That Under Article 63 of the constitution, the Electoral Commission has power to demarcate Kampala as a constituency whether it is a city or district.

Ms. Kiyingi Josephine for the Attorney General submitted that there is no contradiction  between Articles 2 (1) and 78 (1) with Section 8 (1) of the Parliamentary Elections Act, 2005 in light of  Article 21 of the Constitution which provides for equality before the law. She contended that it would be discriminatory to deprive the residents of Kampala of a Woman representative in the Parliament.

The Electoral Commission had not sent a representative at the hearing; they had informed court and the parties that they will not oppose the petition which would be an admission that the elections for Kampala District woman MP were conducted under an unconstitutional law. The Constitutional court however observed that the petition could not be disposed off without representation from the Electoral Commission. The Court summoned the Electoral Commission to attend the hearing and Mr. Sabiti Eric came and reiterated their position that they were not going to oppose the petition. Court took exception of their stand and pointed out that as the body that organized the elections court needed some clarifications from the Electoral Commission before it gives its judgment.

The Constitutional Court agreed with the submissions of Counsel Naboth Muhairwe and found that the Constitutional Amendment Act of 2005 did not abolish the seat of Kampala Woman Member of Parliament based on the well laid out principles of Constitutional interpretation highlighted in Counsel’s submissions. The Court further observed that change in description from district to City could not disenfranchise the people of Kampala.

This decision is significant in many respects; first, it is a proper construction of the Constitution of the Republic of Uganda and upholds the rights and freedoms of Ugandans as envisaged by the framers of the Constitution. The decision further clearly illustrates how the National Objectives and Directive Principles of State Policy in the Constitution can be instructive in Constitutional interpretation.

It is also notable that this decision by the Constitutional Court avoided a number of unnecessary pitfalls. To begin with had the court decided that the Constitutional Amendment Act of 2005 abolished the position of Kampala District woman Member of Parliament, it would have disenfranchised the people of Kampala from voting for their Woman MP especially women who still need the affirmative action through a woman representative in Parliament.

Furthermore, had the Court decided otherwise, it would have created a lacuna in some areas of administration in Kampala especially the role of LC5 councilors and Kampala District Land Board would come question.

Therefore the decision of the Constitutional Court in the Odonga petition has demonstrated how the provisions of the 1995 Constitution of the Republic of Uganda should be interpreted. The Constitutional court relied on the wording of the provisions, reading the constitution as a whole, the intention of the legislators and the National objectives and Principle directives of state Policy to give the constitution a progressive and liberal interpretation which has given the constitution more efficacy. In so doing, the Constitutional Court avoided creating an absurdity that would have had far reaching implications on the administration of Kampala.

Naboth Muhairwe,
Partner
nmuhairwe@agabamuhairwe.com

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