The Constitutional court has today upheld the election of Forum for Democratic Change’s Nabilah Naggayi Sempala as the Kampala district Woman member of parliament after it dismissed a constitutional petition filed by a Kampala voter.
In giving Naggayi a political life line, the judges also settled the lingering legal question as to whether following the enactment of the Kampala Capital city Authority (KCCA), Kampala was no longer a district.
It was the finding of the five judges, that indeed, Kampala was still district, reasoning that the 2005 amendment of the Constitution, which instituted KCCA, did not expressly abolish Kampala as the district and neither did it abolish it having a Woman member of parliament.
“Parliament had the power to do so under Article 78(2) of the Constitution but it did not do so which, in our view, reflects its intention to retain representation of Kampala regardless of it being referred to as capital city,” the judgment partly reads.
“The location, demarcation and people of Kampala remained the same. Mere change of descriptive name to city or district in the law should not be reason to disenfranchise the people of Kampala. Participation in the affairs of government individually or through his/her representatives is guaranteed by Article 38(1) of the Constitution.”
The judgment stems from a 2016 petition filed by one Alex Oryang Odonga, in the Constitutional court, challenging the legality of Naggayi’s re-election asserting that, since 2005, Kampala stopped being a district after the 9th Parliament amended the 1995 Constitution and created Kampala as the capital city of Uganda.
The amendment according to Odonga stopped Kampala from being a district that required a Woman representative in the legislature. The petitioner contended that the Constitution of Uganda provides that there shall be one woman representative for every district in Parliament.
But, the Constitution does not provide for representation in parliament by a Woman representative for a city or cities in Uganda. Odongo further asserted when the Electoral Commission issued an election roadmap for the 2016 general elections, which calendar included the election of a Woman representative for Kampala city on February 18, 2016, declaration of Naggayi as winner of the parliamentary seat on February 19 contravened the Constitution.
Odonga sought for a declaration that section 8(1) of the Parliamentary Elections Act 2005 under which Naggayi was elected is inconsistent with and in contravention of Articles 2 (1) and 61 (1) (b) of the Constitution of Uganda.
In response, Josephine Kiyingi, Naggayi’s lawyer, asked court to dismiss the case on grounds that Odonga didn’t disclose any cause of action against Naggayi.
Kiyingi, therefore, described the petition as so some sort of political prosecution of Naggayi since the right person to be sued was only the attorney general. Odonga, in his petition had listed the Attorney and Electoral Commission as the second and third respondents, respectively.
In their analysis of the case; justices; Steven Kavuma, Richard Buteera, Solomy Balungi Bossa, Cheborion Barishaki and Paul Mugamba faulted Odonga’s lawyer Naboth Muhairwe for not responding to Kiyingi’s contention that Naggayi was wrongly sued.
They said not rebutting that particular argument would ordinarily mean that Muhairwe conceded to the same. In his affidavit in the support of his petition, the five judges found that Odonga didn’t show any wrong doing by Naggayi since her only role was participate in the election as a candidate.
“We are therefore of the considered view that the first respondent [Naggayi] is not responsible for any alleged violation of the Constitution,” they ruled, absolving Naggayi of any wrong doing “…in the circumstances, we agree with counsel for the first respondent that the petitioner had no cause against her but against the attorney general and the Electoral Commission.”
KAMPALA A DISTRICT?
After, that the judges delved into Odonga’s ultimate argument that Kampala as it stands now is no longer district following the enactment Article 5 of the Constitution which had the effect of placing the administration of Uganda’s capital in hands of the central government.
First in their 35 page judgment, the judges point out that the first schedule of the Constitution stipulates that “Kampala and districts of Uganda” for avoidance of doubt they clarify that Kampala in the Constitution is listed first and then other districts.
From the above, what is clear, the judges say, is that Kampala is a district and the capital of Uganda at the same time.
They also had the mandate to interpret Article 5 (2) of the Constitution which stipulates that Uganda shall consist of the districts specified in the first Schedule to this Constitution and such other districts as may be established in accordance with this Constitution or any other law consistent with it.
In particular, they took interest in the word “and” since Muhairwe had insisted that it means that Kampala is not district.
To clear this, the judges used the Merriam Webster dictionary, which states that, the word “and” is “used as a function word to indicate connection or addition especially of items within the same class or type; and used to join sentence elements of the same grammatical rank or function.”
From the foregoing, the judges held that use of the word “and” indicated the connection between Kampala city and the other districts in Uganda.
“It [Kampala] appears under the same schedule with other districts in Uganda. It appears under the same schedule with other districts, albeit, it appears first,” the judges ruled, “We are of the view that Kampala city is in the same class as the districts of Uganda.”
It was also the judges’ finding that Kampala was meant to be administered the same way as before the amendment of the Constitution in 2005 in which it was placed under the direct administration of government.
“Kampala had 7 constituencies and one Woman of member of parliament before the amendment of the Constitution”, they said, “We therefore conclude that in accordance with section 84 of the Kampala Capital City Authority Act and Articles 63 and 293 of the Constitution, the status quo was maintained after the amendment though the Constitution does not mention the word “city”, its worth noting that Women members of parliament are of entire district.”
In dismissing Odonga’s petition, it was pertinent to these five judges to highlight the rationale for creating the position of Women members of parliament.
“It has been documented that women have been marginalized on grounds of gender in most spheres of life,” the judges started, “The state wanted to address such marginalization when they enacted the Constitution. This can be deduced from the preamble to the national objectives and directives principles of state policy and several provisions of the Constitution.”
Accordingly, though the Electoral Commission had conceded through its lawyer Eric Sabiiti, that it illegally organized the election, the judges inevitably concluded that the election of Naggayi as the Kampala Woman member of parliament was consistent with the Constitution.
“In conclusion, we decline to make the declarations sought by the petitioner [Odonga] and accordingly dismiss the petition,” they adjudged, “Each party shall bear its own costs.”