Kampala, Uganda | THE INDEPENDENT | The constitutionality of constituencies demarcated by the Electoral Commission and by the Parliament after the 1995 Constitution are under question.
The Constitutional Court in Kampala ruled that the independent Electoral Commission abrogated the constitution, therefore acted unconstitutionally in their demarcation.
The Parliament of Uganda together with the Electoral Commission has since the sixth Parliament demarcated new constituencies and thereby increasing the size of Parliament. The question has however been whether Parliament and the independent Electoral Commission followed the laid down procedure.
A panel of five Constitutional Court Justices have finally ruled that constituencies that came after the sixth Parliament were created by omission because the electoral Commission acted unconstitutionally when creating them.
The judgment is in reference to constitutional petition 13 of 2019 in which the petitioners sought a declaration that the Independent Electoral Commission failed in its constitutional obligation to review the division of Uganda into constituencies after the publication of the results of the 2002 and 2014 population census.
The petitioners, Dr. Samuel Kamba Baleke, Lutaya Sonko Gerald, and Muganda Fisal argued that the resolutions of the 7th, 8th and 9th Parliament to create new constituencies without the EC having carried out a review of the division of Uganda into constituencies was inconsistent with and in contravention of Articles 61 and 63.
Clause five of Article 63 particularly required the Electoral Commission to review the division of Uganda into constituencies within twelve months after the publication of results of a census of the population of Uganda. There were 212 Constituencies and 39 Districts at the time the constitution was promulgated. The number of constituencies has since shot up to 353, while the number of women MPS has increased from 39 to 146.
The petitioners said the current composition of the Parliament of Uganda was born out of voter discrimination and voter debasement where the majority of Members of Parliament are elected by a minority of the population and hence inconsistent with and in contravention of the constitution.
According to the petitioners, the population of the various constituencies is nowhere near the population quota (population divided by the number of constituencies) as required in law.
The petitioners had also sought a declaration that the retention of one-woman representative in Parliament for every District in Uganda was in contravention of the constitution.
On their part, the Attorney General and Electoral Commission represented respectively by State Attorney Wanyama Kodooli and Hamidu Lugoloobi, argued that Parliament was exclusively vested with the authority to prescribe Constituencies and that the laws in relation to population quota ought to be reviewed carefully before allowing the petition.
Justices Kenneth Kakuru, Catherine Bamugemereire, Christopher Izama Madrama and Irene Esther Mulyagonja agreed with the petitioners that Parliament and the Electoral Commission did not follow the constitution in creating constituencies by resolutions of the 7th, 8th, 9th Parliaments.
They faulted the Independent Electoral Commission for having failed to review division of Uganda into constituencies after the publication of the results of the 2002 and 2014 census of the population of the inhabitants of Uganda.
The judgment on the petition was delivered by Justice Catherine Bamugemereire on 18th March, 2022. She agreed with the petitioners the Independent Electoral Commission violated Articles 61 and 63 of the Constitution by its omission to review the division of Uganda into Constituencies after the publication of the results of the 2004 and 2014 population census.
The Court ruled that in areas such as Arua, Wakiso and Kampala districts that are densely populated, you find that they are represented by MPS who are almost of the equal number in smaller districts.
“It should further be noted that legislators represent people not areas and weighing votes differently according to where citizens happen to reside is discriminatory”, said Bamugemereire in the lead judgement.
She added that seats in Parliament must be apportioned based on a population basis and the legislative districts must as nearly as practical be of equal population and failure to do so renders the apportionment constitutionally invalid.
“The principle of one man one vote should be respected and enforced. I find, however, that no effort has been made by the EC to enforce this sacred right” added Bamugemereire.
According to Bamugemereire, this was a glaring disparity and such constituencies needed to be reviewed.
“There has been a growing trend for Parliament to turn itself into a local government and purport to create counties. This goes against the grain of Section seven of the Local Government Act as amended. The process is a step by step progressive process and largely empowers the local governments to define their local boundaries”, added Bamugemereire
The judges said the Independent Electoral Commission abrogated and violated Articles 61 and 63 of the Constitution and therefore it’s actions were unconstitutional.
According to the Justices, the resolutions made by the 7th, 8th, 9th and 10th Parliament by failing to involve the local governments in the creation of counties without amending the constitution or following the procedures laid down in the Local Government’s Act was also unconstitutional.
No costs were awarded though this being a public interest case.