Last week, the Constitutional Court pronounced itself on three petitions filed in 2010, namely; Kasozi Robinson Vs Attorney General; Legal Action for Persons with Disability Vs Attorney General, The Electoral Commission and National Union of Disabled Persons in Uganda; and, Moses Mauku and Christine Aneno Vs Attorney General. The petitions were challenging the constitutionality of the different aspects of the law relating to the election of Special Interest Groups represented in Parliament. In other words, the petitioners were seeking court to interpret whether the different laws relating to the election of army, youth, workers and PwDs MPs conformed to the standards stipulated in the constitution.
Under Article 79 (1) of the Constitution, law making powers is only vested to Parliament and 79 (2) outlaws the making of laws by any other person/body other than Parliament except under a law made by Parliament. For purposes of this case, Article 78(4) of the Constitution provides that Parliament shall comprise of directly elected MPs, One Woman MP from each district and such numbers of representatives of army, youth, workers , persons with disabilities and other groups as Parliament may determine. It further states that “Parliament SHALL by law prescribe the procedure for elections of representatives of the army, youth, workers and Persons with Disabilities”.
Parliament of Uganda
Accordingly, Parliament enacted the Parliamentary Elections Act—an Act to provide for parliamentary elections and related matters. This Act provided in Section 8 that representatives of the UPDF, Workers, Youth and PwDs shall be elected in a manner prescribed by Regulations made by the Minister under Section 100 of the Act. Section 100 (1) of the Parliamentary Elections Act states that the Minister may, on the recommendation of the Commission and with the approval of Parliament, by statutory instrument, make regulations prescribing any matter which is required or authorized by this Act to be prescribed or which in his or her opinion is necessary or convenient to be prescribed for carrying out or giving effect to the provisions of this Act other than matters to be prescribed by rules of court.
So essentially, what Parliament did was to transfer its legislative mandate to the Minister. This is where the problem arose from. The court agreed with the petitioners and reasoned that the letter and spirit of Article 78 (4) squarely cast the mandate of prescribing the election procedures on Parliament. Whereas it’s true that Parliament can delegate its legislative function, it’s a generally accepted principle of interpretation captured in the Latin maxim delegata potestas non potest delegari that delegated powers cannot be further delegated.
Therefore, by entrusting the powers to make election procedures to the Minister, court reasoned that Parliament abdicated its role and offended Article 78 of the Constitution thus making any procedures prescribed by the Minister as opposed to Parliament unconstitutional.
It is however note-worthy that this decision did not discuss the merits/de-merits of special interest representation in Parliament. Therefore, it’s wrong to argue that the court declared the affected positions useless. Sadly, this seems to be popular view as expressed on mainstream and social media.
Going forward, whereas the Attorney General has indicated that government will apply for a stay of execution of and appeal the decision, I think the most prudent thing to do is make the necessary amendments to the law before the elections. A stay of execution is just an interim remedy which does not dispose the case. Additionally, if government loses the appeal, it will mean throwing out the MPs who would have been elected under the existing law; amending the same law and then conducting fresh elections which will be costly to the tax payer.