The Constitutional Court has
overturned the election of six members of parliament in newly created
municipalities across the country. The affected are Patrick Ocan, the Apac
Municipality Member of Parliament, Elioda Tumwesigye, Sheema Municipality,
Tarsis Rwaburindore Bishanga, Ibanda Municipality, Hashim Sulaiman, Nebbi
Municipality, Asuman Basalirwa, Bugiri Municipality and Peter Abrahams Lokii,
Kotido Municipality.
The unanimous judgment by five Constitutional Court justices led by the Deputy
Chief Justice, Alphonse Owiny-Dollo stems from an application filed by the
former Bufumbira East MP, Eddie Kwizera challenging the legality of a number of
constituencies created after the 2016 general elections. Kwizera argued that
the six constituencies were illegally created by parliament and asked court to
declare them null and void.
He also asked court to have them expunged from government records, nullify the
election of the areas MPs and direct them to refund taxpayers’ money. In
his application, Kwezira argued that the resolutions of parliament creating the
contested constituencies violated Articles 61(c) 63(2) and 91(1) of the
Constitution. Articles 61 and 63 prescribe how Constituencies are to be created
while Article 91(1) mandates parliament to make laws through bills passed and
assented to by the President.
Kwizera said that parliament could only create constituencies through an Act of
Parliament and a mere resolution. Now, in their judgment delivered on Friday,
December 27, 2019, the constitutional court justices, noted that the elections
conducted in the new municipalities were premature, null and void because there
were no vacant positions.
“In the premises, I would hold that the elections conducted in the sixth
affected municipalities mentioned in this judgment are not elections for an
office of Member of Parliament existing under the Constitution because they are
not general elections or by elections. Secondly, the seats contested for did
not have a vacancy and were already represented by the elected MPs in the
general elections of 2016,” said Justice Christopher Madrama.
He noted that the parliamentary elections conducted in
Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido municipalities for non –
existent vacancies or seats cannot stand. Madrama said that Article 61 (1)
(b) of the Constitution places a duty on the Electoral Commission to conduct
elections in accordance with the Constitution and that it was its duty to
ensure that each county is represented in Parliament as stipulated by the
Constitution only where there is a vacancy.
“Vacancies would occur in the municipalities of Apac, Sheema, Ibanda, Nebbi,
Bugiri and Kotido with the necessary demarcation by the second respondent and
would be available for contest in the next general elections upon dissolution
of the sitting,” he added. The Judges ordered that no seats should be
created by creating more constituencies after the general elections have been
held, except in accordance with the Constitution.
Justice Madrama says that the Constitution envisages that any vacancies
created by division or creation of more constituencies or alteration of
boundaries of constituencies shall take effect in the next general
elections. He ordered that Electoral Commission within one year files in
court evidence of the prescription of Parliament dividing Uganda into the
number of constituencies pursuant to the mandate exercised by Parliament under
Article 294 and 63 (1) of the Constitution for the next general elections.
The court further directed the Commission to file evidence in court indicating
that it has demarcated the boundaries of constituencies in accordance with the
prescription of Parliament under Article 63 at least 10 months before the next
general elections. The Judges noted the fact that the affected MPs were not
heard in the petition but observed that their right to a hearing wasn’t
violated in anyway because what was asked of court was whether the office of MP
in the contested municipalities exists in terms of a vacancy under the
Constitution before the next general elections.
Hashim Sulaiman, the Nebbi Municipality MP, said he had just received the news
about the nullification of their elections, but noted that the judgement is
against government and particularly EC, which is in charge of the election and
declined to comment further. Asuman Basalirwa, the Bugiri Municipality
Member of parliament, said they were condemned unheard.
He also said since government created a constituency it couldn’t remain vacant
without representation. However, said they remain in parliament, since
the Commission and government have indicated their decision to appeal the
judgement.
“In case they don’t i will do it on myself because of the time and resources we spent in the elections,” he said. The other justices of the constitutional court include Kenneth Kakuru, Cheborion Barishaki, Fredrick Engonda-Ntende and Christopher Madrama.
The News Editor ,Reporter at Kagadi Kibaale community Radio
