IN THE COURT OF APPEAL AT KAMPALA (Coram: Wambuzi, C.J,Lubogo, J.A, Manyindo, J.,Asthana,J. & Odoki,J CONSTITIONAL CASE NO.

1 OF 1979

BETWEEN 1. ANDREW LUTAKOME KAYIRA 2. PAUL SEMOGERERE.PLAINTIFFS

AND 1. EDWARD RUGUMAYO -Chairman of the National Consultative Council - Secretary of the National Consultative Council

2. OMWONY OJOK

3. DR. F.E.SEMPEBWA & 8 OTHERS.DEFENDANTS

JUDGEMENT OF ODOKI,J.

I have had the opportunity of reading the judgment of Wambuzi, C.J. in draft and I find myself in general agreement with most of his conclusions. I also agree with the reserved reasons the learned Chief Justice has given for our rulings, rejecting the various preliminary objections and applications. In view of this I do not propose to deal in detail with each and every issue raised in this suit. At the commencement of the hearing of this suit an attempt was made by both parties to frame agreed issues but this attempt proved abortive. The result was that two sets of issues were framed, one set prepared by counsel for the plaintiffs, and the other by counsel for the first three defendants. The two sets of issues were more or less similar in substance although they were drafted differently. The issues prepared by counsel for the plaintiffs have been set out in the judgment of Wambuzi, c.j., and I shall deal with some of them in my judgment where appropriate.

The plaintiffs seek various declaration which are set out at the end of this judgement. The facts and circumstances giving rise to this suit have been amply set out in the judgment of Wambuzi, C.J. Most of them were not in dispute. It would be unnecessary to repeat them. From the issues as framed by both parties, the declarations sought and the evidence adduced, I think that this court is called upon to answer four major questions namely: 1. 2. Whether the constitution is the supreme law of Uganda; Whether the President had powers to appoint ministers without approval of the National Consultative Council; Whether the removal of Prof. Y.K. Lule as chairman of the National Executive Committee and President of Uganda was unconstitutional. Whether the various declarations sought should be issued.

3.

4.

I propose to deal with those questions in that order. It is common ground that from 23rd to 25th March 1979 the Moshi Unity Conference was held in Moshi. The conference brought together 28 organisations of Ugandans both inside and outside Uganda which united and determined to overthrow the regime of Idi Amin for the good of every Uganda. The conference resolved to form the Uganda National Liberation Front (hereinafter referred to as the Front) as the body under which the various organizations were to be operated as a United Front. The Front was committed to the achievement of four sets of objectives namely;- National Unity Democracy, National Independence and Social Progress. Three organs of the Front were formed and these were the Delegates conference, the National Consultative Council and the National Executive Committee and its Functional Commissions. The Delegates Conference as to be the supreme organ of the Front and its decisions were to a final and binding. In the absence of the Delegates Conference its powers and responsibilities were to be exercised by the National Consultative Council (hereinafter referred to as the NCC). The NCC had two main roles, the first as an organ of accountability for the Front, with power to make policy for the Front, and the second was the legislative function. Thirty members were elected members of the NCC. The Plaintiffs were among those elected chairman and Secretary of the council, respectively. The National Executive Committee and its functional commissions were given broadly the responsibility of executing the policies and decisions of the Front, and

to provide administration in the liberated areas. Prof. Y.K.Lule was elected chairman of the National Executive Committee and given power to form a Government in the event of the Front accomplishing its objective of over-throwing the regime of Idi Amin. It is now a historical fact that on the 11th April, 1979 the objective of overthrowing the regime of Idi Amin was effectively achieved through the Liberation War, and the Front assumed the powers of the Government of Uganda, headed by Prof. Lule as President. The President acting pursuant to those powers and with the advise and approval of the NCC, made a Proclamation under Legal Notice No. 1 of 1979 published on 8th May 1979 but deemed to have come into force on the 11th April 1979. The proclamation suspended chapters IV and V of the constitution which provisions dealt with the executive and the legislature. All titles, privileges prerogative, powers and functions and exemptions formerly enjoyed or exercised by the former President of the Republic of Uganda under the Constitution were vested in the new President. There was to be a cabinet of Ministers appointed by the President to advise him in the exercise of his executive functions. All legislative powers referred to in the Constitution were vested in the NCC until such a time as a Legislative Assembly was elected. The Legislative powers were to be exercised by the NCC through the passing of Statutes assented to by the President and published in the Gazette. Article 3 and 63 of the constitution were not to apply to the passing of a statute under the proclamation. Subject to the above provisions of the proclamation, the operation of the constitution and the existing laws were not to be affected by the Proclamation except that such laws were to be construed with such modifications, qualifications and adaptations as are necessary to bring them into conformity with Proclamation. This Proclamation revoked the Proclamation published under Legal Notice No. 1 of 1971 by Idi Amin on his assumption of power as the overthrow of Idi Amins regime by the UNLF and forces of its allies amounted in law to a revolution. A revolution in law, is the nullification of the legal order and its replacement by a new order in all illegitimate way. This theory of law known as the theory of revolutionary legality, was expounded by H.Kelsen in his book, General Theory of Law and State at pages 117-118 there he explained the nature and legal effect of a revolution as follows; A revolution in this wide sense occurs whenever the legal order of a community is nullified and replaced by a new order in an illegitimatic way, that is in a way not presented by the first order itself. It is in this context irrelevant whether or not this replacement is effected through a violent uprising against those individuals who so far have been legitimate organs competent to create and amend the legal order. It is equally irrelevant whether the replacement is effected through the mass of the people or through the action from those in government positions. From a juristic point of view the decisive criterion of a revolution is that the order

in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually the new men whom a revolution brings to power annual only the constitution and certain laws of paramount political significance, putting other norms in their place. A great part of the legal order remains valid also within the frame of the new order. But the phrase, they remain valid does not give adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason for their validity. They are no longer valid by virtue of having been created in the way of the old constitution prescribed. That constitution is no longer in force; it is replaced by a new constitution which is not the result of a constitutional alteration of the former. If the laws which were introduced under the old constitution continue to be valid, under the new constitution it is possible only because the validity has expressly or tacitly been vested in them by the new constitution. The new order receives, i.e. adopts norms of the old order; this means that the new order gives validity to (puts into force) norms which have the same content as the old order..Thus it is never the constitution merely but always the entire legal order that it changed by a revolution. This pure theory of law was accepted and relied on by the High Court of Uganda sitting as a Constitutional Court in the case of Uganda v. Commissioner of Prisons, Ex-parte Matovu (1966) E.A 514 at pages 535-6. It was held that the taking over of the powers of the Government by the then Prime Minister, the abrogation of the 1962 Constitution and its replacement by the 1966 constitution amounted to a victorious revolution which established a new legal order based on the 1966 constitution. In so holding the court considered and relied on a decision of the Supreme Court of Pakistan in the case of The State v. Doss and Another (1958)2PSCR 180. In the State v. Doss and Another (Supra) on October, 7 1958 the President of Pakistan and to maintain peace and order declared martial law by proclamation throughout Pakistan, annulled the constitution of Pakistan dismissed the central cabinet as well as the Provincial Cabinets, dissolved both the National and Provincial Assembled, and appointed General Ayub Khan Commander In-Chief of the Army, as the Chief Martial Law Administrator. Three days later the President promulgated the laws (Continuance in Force) Order, the general effect of which was the validation of laws, other than the annulled constitution which were in force before the proclamation, and restoration of the jurisdiction of all courts including the supreme court and the High Courts. The effect of the Proclamation fell to be considered by the Supreme Court in four appeals brought before it. It was held that the Presidents proclamation constituted an abrupt political change not within the contemplation of the 1956

constitution and that it amounted to a revolution. A victorious revolution is an internationally recognizes legal method of changing a constitution. Such a revolution constitutes a new law creating organ by virtue of having a basic law creating fact. Finally it was held that the laws(Continuance in Force) order was a new legal order, and that it was in accordance with that order that the validity of laws and the correctness of judicial decisions had to be determined. In Uganda v. Commissioner of Prisons (supra) the court said, Applying the Kelsenian principles, which incidentally form the basis of the judgment of the supreme court of Pakistan in the above case, our deliberate and considered view is that the 1966 constitution is a legally valid constitution and the supreme law of Uganda, and that the 1962 constitution having been abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of the Laws of Uganda it having been deprived of its de facto and de jure validity. The 1966 constitution, we hold, is a new legal order and has been effective since April 1966 when it first came into force. During the course of the hearing we were informed that the case of state v. Bosso and Another has now been overruled by the case of Asma Jilani v. Government of Punjab (PFD 1972) Supreme court 139 discussed by E.F. Sempebwa in the Uganda Law Focus (1974) page 178. The judgment in that case was not available to us for perusal and consideration. It would therefore be presumptuous to comment on that decision which appears to have been influenced by the socio-cultural conditions obtaining in Pakistan which are not similar to those in Uganda. In Madzimbamuto v. Larder Burke (1966) 1 A.C 645, the Judicial Committee of the Privy council while considering the legality of the Smith regime in Southern Rhodesia following the unilateral Declaration of Independence on 11th November, 1965, cited without disapproval the Dosso and Matovu cases although it distinguished the position in Rhodesia on the ground that there the revolution could not be said to be successful since the old constitutional authority, Britain, was still trying to regain control. Lord Reid who delivered the majority judgment said, It is an historical fact that in many countries-and indeed in many countries which are or have been under British sovereignty-there are now regimes which are universally recognizes as lawful but which derive their origins from revolutions or coup de tat. The law must take account of this fact. In my opinion the decision in the case of Uganda v. Commissioner of Prisons exparte Matovu (supra) is still good law in Uganda and I would adopt the principle annunciated therein relating to the birth of a new legal order. I would hold that the Proclamation published under Legal Notice No. 1 of 1979 was a

new legal order and it had therefore the force of law, and that it was in accordance with that new order that the validity of other laws in Uganda had to be determined. It is common knowledge that on 30th May 1979, Prof. Y.K Lule as President issued another Proclamation published under Legal Notice No. 2 of 1979. The Legal Notice purported to amend a substantial part of Legal Notice No. 1 of 1979. Both the plaintiffs and the first two defendants relied on both Legal Notices in their pleadings. The 3rd defendant did not rely on Legal Notice No. 2 of 1979 and contended in his evidence and submissions that it had no legal effect. The issue was whether Legal Notice No. 2 of 1979 had been validly made so as to have the force of law. How was Legal Notice No. 2 of 1979 made? The only evidence we have on this matter is that of Prof. Sempebwa, the third defendant. This is what he said, I am aware that Legal Notice No. 2 of 1979 was made. It purported to amend Legal Notice No. 1 of 1979. I say purported because no other person than the NCC had power to amend Legal Notice No. 1 of 1979 or indeed legislate. Paragraphs 3 and 4 of Legal Notice No. 1 of 1979 vested legislative powers in the NCC. I remember raising objection to Legal Notice No. 2 of 1979 at a meeting of the council at State House. The Attorney General informed council that Legal Notice No. 1 of 1979 had several errors and informed the council that he had drafted another Legal Notice and proceeded to circulate the drafts. They were discussed for 40 minutes and others pointed out that we thought it improper that the Proclamation should be amended by another Legal Notice in view of the fact that council was present and sitting as a legislature. No agreement or conclusion was reached but we found later that it was published. Legal Notice No. 2 of 1979 was not made by the legislature. I would think that it is invalid. I accept the evidence of Prof. Sempebwa and his contention the Legal Notice No. 2 of 1979 was invalidly made by Prof. Lule. It is a abundantly clear that Legal Notice No. 2 of 1979 was not made in accordance with the then established legal order. According to the new order all legislative powers were vested in the NCC and it was to exercise them through the passing of statutes assented to by the President and published in the Gazette. The relevant provisions of Legal Notice No. 1 of 1979 provided, 3 All legislative powers conferred to in the constitution are hereby vested in the National Consultative Council until such time as a Legislative Assembly is elected. 4. All legislative powers shall be exercised by the National Consultative council

through the passing of statutes assented to be the President and published in the Gazette.

Legal Notice No. 2 of 1979 did not comply with the above provisions, The Legal Notice was not passed by the NCC but instead it was issued by the President who had no authority to do so. Only the NCC had power to pass statutes and the power of the President was to assent to those statutes. He could not turn himself into the sole legislature. It is true that under Article 64 of the constitution, the President had legislative powers to promulgate Ordinance where exceptional circumstances rendered it necessary. The President did not purport to act under this provision as he issued a Proclamation instead of an Ordinance. But even if he had acted under this article, it is doubtful whether that provision was not in conflict with the Proclamation which had vested all the legislative powers in the NCC. Secondly, it is doubtful whether the requirements set out in that article were complied with before and after the Legal Notice was made. The conditions set out are that;(a) (b) The National Assembly must not be sitting or is dissolved; The cabinet must advise the President that exceptional circumstances exist which render it necessary for him to take immediate action: To Ordinance must be laid before the National Assembly immediately upon its next meeting and it ceases to have effect at the expiration of six weeks from the reassembly of the National Assembly.

(C )

According to the evidence of Prof. Sempebwa the NCC was in session at the time the Legal Notice was made. The NCC was even shown a draft of the Legal Notice which they discussed without passing it. There was no evidence that exceptional circumstances existed to warrant the taking of immediate action, by-passing the NCC. I am not satisfied that the Legal Notice was issued under Article 64 of the Constitution. Accordingly, I hold that Legal Notice No. 2 of 1979 was made in contravention of the existing law and was null and void in too and of no legal effect. It is now convenient to deal with the question whether the constitution is the Supreme Law of Uganda. But what is a constitution? A constitution is the basic of fundamental law of the state which directs the principles upon which the Government is founded, sets out the framework and major organs of the government, defines the powers and functions of those organs and the relationship between one another, and regulates the exercise of those functions and powers. In a formal sense, a Constitution is a document or a series of documents of special legal sanctify embodying those principles.

What then was the constitution of Uganda immediately after the publication of the Proclamation in Legal Notice No. 1 of 1979? The Interpretation Decree 1976 defines constitution in Section 2 as the Constitution of Uganda as by law established. I have already held that the Proclamation was a new legal order and all other laws derived validity from it. The Proclamation suspended only chapters IV and V of the 1977 constitution and preserved the rest of the provisions of the Proclamation itself. In this connection, the Proclamation provided, 8 (2) Subject to this Proclamation the operation of the constitution and the existing laws shall not be effected by the Proclamation but such existing laws shall be construed with such modifications as are necessary to bring them into conformity with this Proclamation. Lastly the Proclamation repealed Idi Amins Proclamation published under Legal Notice No. 1 of 1971. At the time Legal Notice No. 1 of 1979 was published there was on the statute book, the constitution(Modification) Decree No. 5 of 1971 which contained certain provisions relating to the executive arm of government, particularly the President and cabinet. That Decree was modifying the constitution and in my view it was part of the constitution of Uganda. The Decree has since then been repealed by the existing law (Miscellaneous Repeal) statute No. 2 of 1980, passed in January 1980. There was also on the statute book the Judicature Act (Amendment) Decree No. 20 of 1977, (as amended by Decree No. 4 of 1978) which established the court of Appeal for Uganda and the office of Principal Judge and made consequential amendments to the constitution. I would hold, therefore that the constitution of Uganda immediately after the publication of the proclamation in Legal Notice No. 1 of 1979 consisted of the Proclamation itself, the 1967 constitution without the suspended provisions, the constitution(Modification)Decree, and the Judicature Act (Amendment) Decree in so far as the constitution and the Decree were not in conflict with the Proclamation. In other words, the constitution of Uganda was the 1967 constitution as modified by the constitution (Modification) Decree, the Judicature Act (Amendment) Decree and the Proclamation. What is the status of a constitution in the national legal system? According to The Pure Theory of Law (1967), the constitution represents the highest level of positive law in a national legal order. The law or the legal system is seen as a system of norms which are arranged in a hierarchical structure. At the highest level is the constitution which regulates the creation of other legal norms.

At pages 221-223 of that book, reproduced by Lloyd, Introduction to Jurisprudence, 4th Edition, page 335, Prof, Kelson states, The legal order is not a system of coordinated norms of equal level, but a hierarchy of different levels of legal norms. Its unity is brought about by the connection that results from the fact that the validity of a norm created according to another norm on that other norm whose creation in turn is determined by a third one. This is a regression that ultimately ends up in the presupposed basic norm. This basic norm therefore is the highest reason for the validity of the norms, thus forming a legal order in its hierarchical structure.considering only a national legal order the constitution represents the highest level of positive law. The above principles are given recognitition and codified in Article I of the constitution of Uganda which declares:(1) This constitution is the Supreme law of Uganda; (2) Subject to the provisions of article 3, if any other law is inconsistent with this constitution, this constitution shall prevail and the other law shall to the extent of the inconsistence be void. The High Court of Uganda sitting as a Constitutional court in the case of Shs v. Attorney General (No. 2) (1970) E.A 523 reaffirmed the doctrine of the Supremacy of the constitution when it held that the 1967 constitution was the Supreme law of Uganda. Both Mr. Semogerere and Prof. Sempebwa admitted in their evidence that the constitution as the supreme law of Uganda. Mr. Semogerere referred to the constitution as the law of last reference. I am aware of the provision of Paragraph 16 (3) of the Proclamation published in Legal Notice No. 5 of 1980 which provides;Where any conflict arises between the provisions of this Proclamation and the provisions of the constitution of Uganda, the constitution of Uganda National Liberation Front or any other written law the provisions of this Proclamation shall prevail. I do not think that this provision alters the legal status of the constitution since its effect is merely to amend the constitution. Consistent with what I have said above, this Proclamation also is part and parcel of the Constitution as by law established.

It follows, therefore, that the constitution of Uganda is still the supreme law of Uganda. I shall next deal with the issue whether the Moshi Minutes and the UNLF constitution are part of the law of Uganda. It was not seriously contended that any of these documents had been transformed into law. Indeed both Prof. Sempebwa and Mr. Semogerere admitted in their evidence that neither of these documents formed part of the law of Uganda. However, in their written statement of Defence filed by the Attorney Generals chambers, the first two defendants state in paragraph 5, The Defendants aver that by the Proclamation contained in Legal Notice No. 1 of 1979 as amended by Legal Notice No. 2 of 1979 the powers of government were assumed by the Uganda National Liberation Front of which Y.K Lule was chairman of its Executive Committee and consequently President of the Republic of Uganda, and that the operation of the 1967 constitution was subject to the proclamation and the arrangements of the Uganda National Liberation Front Constitution. The Moshi Minutes are a record of proceedings of the Moshi Unity Conference, Although Mr. Semogerere had reservations on the correctness of the record produced by the second defendant as Secretary at the meeting, he admitted that the Minutes had been approved by the NCC in mid May 1979. The UNLF Constitution is a document containing the principles and organs of the Front and the functions and powers of those organs. It is a political document of a political organization, the Front. Mr. Semogerere said in his in his evidence that the Front was analogous to a political party, and it follows that the UNLF Constitution was analogous to a constitution of a political party. The UNLF Constitution was debated and adopted by the NCC in May 1979. The Moshi Unity Conference and what is popularly referred to as the Moshi Spirit are mentioned in the Preamble to the UNLF Constitution in this form: NOW THEREFORE, we representing various Ugandan organizations gathered at Moshi these days of the 23rd to 26th March, 1979, embued with love for our country and the Moshi-Spirit and in conformity with guiding principles agreed to, hereby resolve to unite our efforts and forces into a Uganda National Liberation Front with a new to performing effectively the task and duty herein mentioned. The UNLF Constitution provides in Article X10.2 that in the event of any doubt in the interpretation of this constitution, the Moshi Minutes would be the guidelines. The Moshi Unity Conference, the UNLF and the Draft Constitution of the Front are referred to in the preamble to Legal Notice No. 1 of 1979. This is the nearest that the UNLF constitution and the Moshi Minutes came to be incorporated into

the law of this country. But they were not so incorporated because a preamble does not form part of the provisions of an enactment. This traditional function of a preamble is to explain the object of a statute or to explain the reasons why the enactment is considered desirable. In general a preamble provides background information but it is not to influence the construction of the body of the statute. In semu Kiseka Mukwaba & others v. Daudi Musoke Mukubira & Others 7 ULR 74, a case which considered the legality of the deportation of the Kabaka of Buganda, it was held that in so far as the Uganda Agreement of 1900 had been incorporated in a statute, as schedule to cap.77, the Agreement formed part of the Constitution and created legally enforceable rights and liabilities. Griffin, C.J., said, Thus in my view, to the extent above exemplified by Ordinance of the Protectorate the Agreement was consolidated as a source and origin of law and rights and liabilities in Buganda. Article 5 of the Agreement in effect had foresee this position and sought to preserve it since Article 5 reads- The laws made for the general government of the Uganda Protectorate by Her Majestys Government will be equally applicable to the Kingdom of Buganda except in so far as they may in any particular conflict with the terms of this Agreement, in which case the terms of this Agreement, will constitute a special exception in regard to the Kingdom of Buganda. On the other hand in Daudi Ndibarema v. Enganzi of Ankole (1960) E.A 47 the Court of Appeal held that the Ankole Agreement had not been made part of the municipal law of Uganda despite references to it in various Ordinances. The court said, It will be observed that what the High Court was asked by prayer 2 (a) to do was to construe the Agreement and to declare that any act or omission which is inconsistent with the provisions of the Agreement or with the provisions of the Agreement or alternatively with its spirit or intendment (e.g. the Crown Lands Adjudication) Rules is illegal, null and void. This the Court rightly refused to do.

Mr. Kazzora argued that the Agreement has been made part of the municipal law of the Protectorate and drew attention to various Ordinances in which the Agreement is mentioned either in the preamble or the body of the Ordinance. I am not satisfied, however, that the Agreement has been made part of the municipal law of the Protectorate and I think that it must be regarded only as one of the Native Agreements or treaties under which the Crown derives the jurisdiction in Uganda which it has since exercised. Adopting as I do the above reasoning and having regard to the evidence in this case I am of the firm view, and I would hold, that neither the Moshi Minutes nor the UNLF Constitution have been transformed into law or incorporated in any law and are, therefore, not part of the law of Uganda. They are political documents of association which like other instruments of association or co-operation operate under the law. They are subject to the law, and not the law subject to them. Having disposed of the first major constitutional question and put the constitution in its proper legal perspective, I would now proceed to deal with the second question, namely whether the President had powers to appoint Ministers without approval of the NCC. It was contended by the plaintiffs that the President had, under the 1967 Constitution, as amended by Proclamation in Legal Notice No. 1 of 1979, exclusive powers to appoint Ministers, and that the NCC had no valid powers to approve or ratify such appointments. The Defendants, on the other hand argued that the NCC had powers under UNLF Constitution to approve and ratify ministerial and political appointments. It was further contended by the Defendants that there was no conflict between the provisions of the Constitution of Uganda and those of the UNLF Constitution regarding such appointments. The provisions governing the appointment of Ministers at the material time were contained in Legal Notice No. 1 of 1979 and the constitution (Modification) Decree No. 5 of 1971. Paragraph 5 of the Proclamation provided, There shall be a Cabinet of Ministers appointed by the President which shall advise the President in the exercise of his executive functions. Section 5 (1) of the Constitution (Modification) Decree provided, There shall be an Attorney General who shall be a Minister of the Government appointed by the President. On the other hand, the UNLF Constitution provided in Article V 5.4. as follows, (a ) The National Consultative council shall have the functions:-

(i) (ii) (iii) (iv)

(v)

To approve and ratify all political appointments made by the Executive Committee and the Government of the Front.

The task of this court is to interprete and give meaning to the above provisions. But what principles govern the interpretation of the Constitution? It appears well established that the principles which govern the construction of statutes apply to the interpretation of a Constitution. See: Attorney General of Uganda v. Kabakas Government (1965) E.A. 393 and Republic v. El Mann (1969) E.A. 357. In Attorney General of Uganda v. Kabakas Government (supra) The High Court sitting as a Constitutional Court said, It is trite law that the Independence Order, the Independence Constitution and the Schedule to the Constitution including the schedule are to be interpreted in accordance with the same rules of construction as those which govern the interpretation of statutes. The rules of statutory interpretation are lucidly summarized in Craies on statute Law (6th Edn.) at page 63 as follows;The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. The tribunal that has to construe an Act of a legislature or indeed any other document has to determine the intention as expressed by the words used. And in order to understand these words it is natural to inquire what is the subject matter with respect to which they are used and the object in view . If the words of the statute are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law given. In Republic v. El Mann (supra) Counsel for the accused while accepting the above principles invited the court to apply a more liberal construction to a constitution than the court would adopt to an ordinary enactment of the legislature and he cited some passages from Basu on the Constitution of India (5th Edn.) at page 54 which appeared to lend some support to his view. Counsel for the Republic on the other hand contended that the same cannon of

construction apply to a constitution as to any other enactment of the legislature. Mwendwa, C.J, said, There are, we consider, dicta which appear to support either view point. But we think that the issue is put into true perspective in the citation which appears on page 55 of Basu in which Das, J. in Keshave Menon v. State of Bombay (1951) S.C.R. 228, a Bombay case, said, An argument founded on what is claimed to be the spirit of the constitution is always attractive for it has a powerful appeal to sentiment and emotion, but a court of law has to gather the spirit of the Constitution, from the language of the Constitution. What one may believe or think to be the spirit of the constitution cannot prevail if the language of the constitution does not support that view. We respectfully adopt this dictum as setting out the correct approach to the interpretation of a Constitution. We do not deny that in certain contexts a liberal interpretation may be called for, but in one cardinal respect we are satisfied that a Constitution is to be construed in the same way as any other legislative enactment and is where the words used are precise and unambiguous they are to be construed in their ordinary and natural sense. It is only where there is some imprecision or ambiguity in the language that any question arises whether a liberal or restricted interpretation should be put upon the words. I am highly persuaded by the above statements with which I respect fully agree, and I would adopt them in the interpretation of the Constitution under consideration. Before I consider the provisions of the Constitution involved, I would point out that the Moshi Minutes and the UNLF Constitution cannot be called in aid in the construction of the Constitution. Reports of conference are not normally admissible in evidence of influence the construction of legislation and the same position applies to instruments of association of political organizations. If authority were needed for the proposition I have just made, I would refer to the case of Katikiro of Buganda v. Attorney General of Uganda (1959) E.A 382 (C.A) and (1960) E.A 784 (P.C); and Attorney General of Uganda v. Kabakas Government (1965) E.A 393. In the first case which was quoted with approval in the second case, the court of Appeal for Eastern Africa considered the interpretation to be placed upon a schedule to the Buganda Agreement 1955, which schedule had been given the force of law and accordingly was justiciable as part of the municipal law of Uganda. The appellant relied in part on a White Paper which included the proceedings of a Constitutional Conference which had earlier taken place

at Namirembe. OConnor, P., in dealing with the question of the White Paper had this to say, What we are interpreting is legislation. Under ordinary rules for the construction of statutes the reports of commissioners are not admissible for the purpose of directly ascertaining the intention of the Legislature though they may perhaps be looked at as part of the surrounding circumstances for the purpose of seeing what was the evil or defect which the Act under Construction was designed to remedy; see the speech of Lord Halsbury; L.C in Eastman Photographic Co. v. Controller General of Patents (1898) A.C at P. 573-576 as explained by Lord Wright in Assan Railways and Trading Co. Ltd v. Inland Revenue Comrs (1935) A.C at P. 458. I assume that this rule would apply also to the report and recommendations of a conference such as the Namirembe Conference. I now proceed to consider the provisions relating to appointment of Ministers. The relevant provision is, There shall be a cabinet of Ministers appointed by the President. The word appoint is not defined in the constitution nor in the Interpretation Decree. It is a word in common usage in statutory provisions. It is used in various provisions of the constitution where the President is given power to appoint various officers in government, public services and statutory bodies. In this context, the word appoint its, in my view, used in its ordinary sense and therefore it must be construed in its ordinary and natural meaning. Dr. Byamugisha for the plaintiffs, referred us to the meaning assigned to this word in the Oxford English Dictionary Vol. 1 p. 408, where the word appoint is said to mean, among other things. To determine authoritatively, prescribe, decree or ordain. I think this meaning conveys the idea of a final determination and I would hold that to appoint a person to an office means to make an authoritative and final decision that a person is to occupy an office or perform the functions of that office. I do not think that the language used in the provision leaves any room to accept the contention of the defendants that the appointments were subject to the approval of the NCC. The word approve generally means to confirm some action which has been taken or decided upon or is about to be taken or entered into.

See Zuleiman Fakir Mohamed v. A.J Hindoo (1957) E.A 789. If the legislature had intended to subject such appointments to approval and ratification by the NCC, there was nothing to stop it saying so. It is clear that where the President is required to act in accordance with the advice of a certain authority, the statutory provisions specify so. It follows that the President had no legal obligation under the constitution to submit ministerial appointments to the NCC for approval and ratification. The powers of NCC to approve and ratify ministerial and political appointments were contained in the UNLF Constitution which as I have held is not law in Uganda. To subject ministerial appointments made by the President to approval and ratification would be clearly to fetter his executive powers. I am of the view that the provisions of the UNLF Constitution were incapable of that the provisions of the UNLF Constitution were incapable of fettering or limiting the executive powers that NCC had under the UNLF Constitution over ministerial appointments were not legal but political powers. The next question to be considered is whether the removal of Prof. Lule as Chairman of the National Executive Committee and President of Uganda was unconstitutional. The plaintiffs contend that it was unconstitutional whereas the defendants argue that it was constitutional. The plaintiffs aver in paragraph 15 of their plaint that; In voting out of office the said Y.K.Lule as Chairman of the Uganda National Liberation Front and as President of Uganda, the Consultative Council purported to act on the basis of the provisions of the constitution of the Uganda National Liberation Front and the Minutes of the Moshi Unity Conference. That allegation is admitted in substance by the Defendants. In Paragraph 10 of the Written Statement of Defence filed by the first two Defendants, they plead, No admission is made of paragraph 15 as the National Consultative council did not purport to, but did, act on the basis of the constitution of the Uganda National Liberation Front and the Minutes of the Moshi Unity Conference. On the other hand, in paragraph 16 of his Written Statement of defence, the 3rd Defendant contended, In the further alternative but without prejudice, paragraph 15, 16 and 17 of the plaint are denied and it shall be contended that the decision to vote the said Y.K Lule out of office referred to in the Plaint was made under the Constitution of Uganda 1967 as modified by Legal Notice No. 1 of 1979 and the arrangements of the Uganda National Liberation Front as contained in its Constitution and the Minutes of the Moshi Conference and

therefore the decision was not ultra vires the provisions of the constitution of the Republic of Uganda 1967, but legimately made. The plaintiffs contend that the NCC must, when discharging its functions under its two respective roles, act in accordance with the constitution of 1967. In paragraph 18 of their plaint, they plead, The 1st and 2nd plaintiffs are further aggrieved in that as members of the National Consultative Council and also as members of the Legislative Assembly they are duty bound to ensure that the National Consultative Council both of its own and also in the other capacity where its members are part of the legislature, must in discharging its respective roles act within the purview of the constitution of the Nation, i.e. the constitution of the Republic of Uganda of 1967, but the National Consultative Council has failed in many instances to act within the purview of this constitution but has instead acted in direct contravention of the constitution. Three instances of contravention are then listed. Several issues arise out of these pleadings. The first is what are the two roles of the NCC and in what capacity was the NCC acting when it removed Prof. Lule from office. The second issue is whether the NCC had powers to remove Prof. Lule from office. The third issue is whether the removal of Prof. Lule is a justifiable act. It is common ground that the NCC had two roles, first as the legislature and the second as a political organ of the UNLF. Its legislative role was established by Paragraph 3 and 4 of the Proclamation under Legal Notice No. 1 of 1979, which vested all legislative powers under the constitution in the NCC until such a time as a Legislative Assembly was elected. As a creature of statute, the powers of NCC were statutory and were to be found in the Proclamation and the constitution of 1967. The power to remove the President by a vote of no confidence was not contained in the constitution as Article 30 which gave that power to the National Assembly had been suspended by the Proclamation. Prof. Sempebwa in his evidence claimed that the NCC was sitting as a legislature when a motion of no confidence was moved against Prof. Lule. Mr. Semogerere on the other hand stated that the NCC was at the time sitting as an organ of the Front. The NCC as an organ of the Front is set up by Article V 5.1 of the UNLF Constitution. The powers and functions of the NCC are listed under Article 5.4 (a) as follows:

(i) (ii)

To initiate policies of the Front and its government; To consider and approve policies initiated by the Fronts Executive Committee and government; To be the Supreme Legislative Body of the Front and its government. To approve and ratify all political appointments made by Executive committee, and the government of the Front. To guide, oversee and direct the Executive and the Administration on matters of general policy.

(iii) (iv)

(v)

The National Executive Committee is established by Article V of the UNLF Constitution and its composition is set out in clause 5.5 (a) of that Article as consisting of: (i) (ii) (iii) Chairman Vice Chairman and Nine members.

The NCC is given power to fill vacancies in the committee and even to remove members from the committee. In this connection Article V 5.5 of the UNLF Constitution provides. (1) In the event of an office or position falling vacant in a functional commission, the Executive committee or the National Consultative Council the same shall be filled by an election at a duly convened meeting of the council. An office or position becomes vacant in the event of resignation, death, permanent physical or mental incapacity duly certified by a team of competent registered doctors or on the removal of the holder thereof by a duly and properly convened meeting of the National Consultative Council. Having regard to the pleadings the evidence adduced by both parties and the relevant provisions under which the parties claim that the NCC acted, I am of the view, and I would hold that the NCC was sitting as a political organ of the UNLF constitution when removing Prof. Lule from the office of chairman of the National Executive Committee of the UNLF. I hold further that Prof. Lule having lost that office, he could not hold the office of President of Uganda which he has assumed by virtue of being chairman of the National Executive Committee.

As it has not been proved that any particular provision of the constitution or indeed of any law, was contravened by the action of the NCC in removing Prof. Lule from office, this court has no basis for holding that the removal of Prof. Luke was unconstitutional. On the contrary the constitution guarantees freedom of association in Article 18, and the UNLF constitution is an instrument of association for the Front as a political organization. The removal of Prof. Lule was carried out under this instrument of association and in my view, that action was intra vires the UNLF Constitution. According to the evidence before us the NCC had not adopted any Rules of Procedure but it was guided by the Draft Rules of Procedure. It is not possible to hold that the procedure adopted by NCC when removing the motion of no confidence in Prof. Lule was irregular or unconstitutional. In any case, I would accept the submission of Mr. Byamugisha learned State Attorney that the removal of Prof Lule from office was a political act which is not justiciable in courts of law but is reserved to political organs of the state. Mr. Byamugisha referred us to the case of Uganda v. Commissioner of Prisons exparte Matovu (supra) and Luther v. Borden (1849) 7 How, I among others. Counsel submitted that what happened at state house, Entebbe was a matter of accountability of the NCC to the whole nation and not for this court to intervene in the matter. He invited the court to desist from making a decision which would have far reaching and disastrous consequences. In his submission, political questions could only be resolved by the executive and the legislature. In Luther v. Borden, the Supreme Court of the United States defined a political question ad. a question relating to the possession of political power of sovereignty of government determination of which is based on congress and the President whose decisions are conclusive on the courts. This definition was quoted with approval in the case of Uganda v. Commissioner of Prisons, Ex-parte Matovu. The removal of Prof. Lule raises questions relating to possession of political power, and in my view falls within the ambit of the above definition of a political question. There is authority for the proposition that courts have no power to inquire into matter essentially political. In the case of Luther v. Borden the Supreme Court said, This tribunal should be the last to overstep the boundaries which limit its own foundation. And while it should always be ready to meet any question confined to it by the constitution it is equally its duty to take care not to involve itself in discussions which, properly belong to other forums. No one we believe

has ever doubted the proposition that according to the institutions of this country, the sovereignty in every state resides in the State, and that they may alter, and change their form of government at pleasure. But whether they have changed it or not by abolishing an old government, and by establishing a new one in its place, it is a question to be settled by political power. And when that power has decided, the courts are bound to take notice of its decision and follow it

The court went on to say that political questions are not settled on strict legal principles but rather on political considerations and expediency. The court reassented. But fortunately for our freedom from political excitements in judicial duties this court can never with propriety be called on to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representatives, either in the State or general government. These questions relate to matter not to be settled on strict legal principles. There are adjusted rather by inclination or prejudice or compromise, often. Some of them succeed or are defeated even by public policy alone or mere naked power rather that intrinsic rights. I would respectfully agree with the above observation and would hold that the principles enunciated therein apply with equal force to the political question under consideration. I would hold that the removal of Prof. Lule was not a justiciable matter and I would decline to inquire into its validity. Finally I shall deal briefly with the question whether the declarations sought should be issued. The first declaration prayed for is, That the supreme law of Uganda is the Constitution of the Republic of Uganda of 1967 and not the constitution of the UNLF or the Minutes of the Moshi Unity Conference. I have already held that the supreme law of Uganda is the constitution of Uganda as by law established i.e. the 1967 constitution with modification and amendments. The Moshi Minutes and the UNLF Constitution themselves not being law are not capable of being superior to any law, leave alone having any legal supremacy. I would therefore issue a declaration that the constitution of Uganda of 1967 is the Supreme law of Uganda. The second declaration asked for is stated in these words;

That the power to make ministerial appointments, appointments to the Public Service of Uganda Government vest solely in the President and that the Consultative council has no valid powers to ratify and approve such appointments. it is clear that the wording of this declaration has been overtaken by events since under the Proclamation in Legal Notice No. 5 of 1980 the power to appoint Ministers is vested in the Military Commission which today exercise executive functions. The declaration sought can only relate to the position at the time of Prof. Lules removal. I have already held that the President has powers to appoint Ministers without approval of the NCC. No evidence was adduced nor arguments advanced in respect of the powers of the President or the NCC over appointments in the Public Service. It would be unsafe to make any decision regarding such appointments, and I make none. In the result I would issue a declaration that at the material time, the power to make ministerial appointments vested solely in the President and the National Consultative Council had no legal Powers to ratify and approve such appointments. Thirdly, the plaintiffs prays, That the procedure followed in removing the Chairman of the Executive Committee of the UNLF and thus as President of the Republic of Uganda was unconstitutional. As I have already said that it is not possible to hold that the removal of Prof. Lule was unconstitutional and that in any case, the matter is not justificiable in this court, being a political question, I would not issue this declaration. The fourth declaration the plaintiffs seek is, That the National Consultative Council has no powers to remove the President from office. For the reasons given above I would issue a modified declaration that the NCC acting in its capacity as the Legislature had no and has no powers to remove the President from office. Fifthly and finally the plaintiffs pray the Court to declare; That when deciding upon matters of national interest the National Consultative Council must sit in the Legislature and be governed and guided by the Constitution of Uganda.

The plaintiffs did not explain what they meant by matters of national interest and I am unable to understand precisely what that expression includes. Nor is it clear why the NCC must sit as Legislature when deciding such matters. The declaration sought is so vogue that I find that it would serve no useful purpose in issuing it, and I would decline to do so. In view of the nature of this case, its constitutional importance the relationship of the parties and the partial success of the plaintiffs in the suit, I would order that each party bears his own costs. DATED AT KAMPALA this.21st .day of..October,..1980.

(B.J. Odoki) J U D G E.