Tumukunde v Attorney General & Anor (Constitutional Petition No. 6 of 2005) [2005] UGCC 1 (26 August 2005)

Key Facts

Issues

• The court considered whether the President of Uganda, as Commander-in-Chief of the UPDF, could be challenged in court for his actions. The petitioner argued that the Constitution's supremacy (Article 2) and the Constitutional Court's jurisdiction (Article 137) allow such challenges, while the respondents claimed presidential immunity under Article 98(4). The court ruled that while the President cannot be personally liable to proceedings, his actions may be reviewed for constitutional compliance.
• The court examined if the petitioner's letter, written under the President's directive, met constitutional requirements for resignation (Article 83). The petitioner claimed coercion, but the court found the letter fulfilled the formal criteria (written, signed, addressed to the Speaker) and accepted it as valid, noting soldiers' duty to obey commands.
• The court determined the petitioner was not entitled to damages for the constitutional issues, as no rights were proven to be violated. It dismissed the petition and ordered each party to bear its own costs, with partial success on some issues but no actionable relief awarded.
• The court assessed if the Speaker's declaration of vacancy, based on the accepted resignation, violated Articles 80, 83, or 84. It concluded the process was lawful as the resignation was valid, and the Speaker followed constitutional procedures without contravention.
• The petitioner argued that the UPDF's charges for unauthorized speech infringed his freedoms of expression and assembly. The court held that while soldiers have constitutional rights, military regulations requiring permission for press contact are reasonable and lawful, thus not contravening the Constitution.

Holdings

• The petition was dismissed in part, with no damages awarded to the petitioner. The court concluded that the petitioner's claims were not substantiated for damages, and each party was to bear its own costs. The majority decision dismissed the petition, while a minority expressed partial agreement.
• The notification by the Speaker to the Electoral Commission about the vacancy of the petitioner's seat was lawful and did not contravene the Constitution. The court emphasized that the Speaker had no obligation to investigate the reasons for resignation beyond verifying the formality.
• The petitioner's letter dated 28th May 2005 was deemed an effective resignation of his parliamentary seat. The court ruled that the Speaker correctly accepted the resignation as it met the constitutional requirements (written, signed, addressed to the Speaker), despite being under a directive from the Commander-in-Chief.
• The UPDF pressing charges against the petitioner did not contravene articles 20, 21, and 29 of the Constitution. The court reasoned that military personnel, including parliamentary representatives, are subject to disciplinary laws and require permission for public statements, which is a reasonable restriction for maintaining discipline and security.
• The court held that the President of Uganda can be challenged in a competent court of law regarding acts that contravene the Constitution, except for presidential election petitions. However, while holding office, the President is immune from legal proceedings. The majority decision affirmed the challengeability, but Justice Kavuma dissented, emphasizing presidential immunity.

Remedies

• The court held that the UPDF's charges against the petitioner, based on military law and code of conduct, did not violate the petitioner's constitutional rights to freedom of speech, expression, or assembly as those rights are not absolute for military personnel.
• By a majority of three to two, the court dismissed the petition. Each party was ordered to bear its own costs. No damages were awarded to the petitioner as his claims were not supported by evidence of constitutional violations.
• On Issue No.1, the court held that the President's acts can be challenged in court, but while holding office, the President shall not be liable to proceedings in any court. The sole exception is Presidential Election Petitions under article 104(8).
• The court declared that the Speaker of Parliament did not contravene the Constitution when notifying the Electoral Commission of the petitioner's seat vacancy, as the resignation was deemed effective.
• The court ruled that the petitioner's letter dated 28th May 2005, addressed to the Speaker of Parliament, amounted to a valid resignation under article 83(1) of the Constitution despite being written under directive from the Commander-in-Chief.

Legal Principles

• The President of Uganda enjoys immunity from legal proceedings while holding office under Article 98(4) of the Constitution, which protects the person of the President from being sued or liable in court. However, the Constitutional Court retains jurisdiction to review acts of the President for constitutional compliance under Article 137, provided the challenge does not directly target the President's person but rather seeks to enforce constitutional rights and freedoms.
• The court emphasized the independence of the three branches of government, noting that judicial interference with executive actions (e.g., the President's directives as Commander-in-Chief) risks violating the separation of powers. This principle was invoked to justify the President's immunity from being subjected to court proceedings for official acts.
• Article 2 of the Constitution establishes its supremacy, requiring all authorities, including the President, to observe and protect it. The court affirmed that the Constitution must bind all persons and institutions, even as it recognized the President's immunity from direct legal proceedings under Article 98(4).

Precedent Name

• The Attorney General vs Major General David Tinyefuza
• Nighell vs Sultan of Jahore
• Baker vs Cart
• Uganda Law Society and another vs Attorney General
• William Jefferson Clinton vs Paula Corbin Jones

Cited Statute

• Constitution of the Republic of Uganda, 1995
• Evidence Act
• Parliamentary Elections Act, 2001
• Uganda People's Defence Forces Act (Cap 307)

Judge Name

• S.B.K. Kavuma
• A.E.N. Mpagi-Bahigeine
• A. Twinomujuni
• L.E.M. Mukasa-Kikonyogo
• C.N.B. Kitumba

Passage Text

• The court ruled that 'the petitioner's letter dated 28-5-2005 addressed to the Rt. Hon. Speaker amounted to resignation of the petitioner's seat in Parliament.' (Section 14.5)
• The court held that 'Actions of the President of Uganda can be challenged in a competent court of law. However, while holding office, the President shall not be liable to proceedings in court.' (Section 10.5)
• The court concluded that 'pressing charges against the petitioner violates and contravenes articles 20, 21, and 29 of the Constitution.' (Section 15.81)