The Constitutional court recently handed down a ruling on the question of coram of the same court.

This decision is of great importance to the nation for the main reason that the issue of the composition of this court is now fairly put to rest. It is accurate to state that this ruling precisely rhymes with Article 137 (2) of the Constitution that prescribes the composition of the Constitution court as five justices.

What this means is that for every Constitutional dispute, the number of justices that must determine such a dispute is five. The emerging jurisprudence from this ruling is that the required coram for constitutional disputes is five justices, and not one, as the case has been in some matters. All attendant applications arising from constitutional petitions must, therefore, be heard by five justices.

The uncertainty created by section 12 (1) of the Judicature Act that was previously construed to vest jurisdiction in a single justice of the Court of Appeal sitting as a Constitutional court has now been decisively dealt with. As observed by one of the justices in this matter, Article 137 (2) of the Constitution is clear and unambiguous.

Section 12 (1) vests jurisdiction to determine interlocutory matters before the Court of Appeal in a single justice. The key point here is that the same provision does not vest such jurisdiction in a single justice when it comes to constitutional matters. This ruling, therefore, confirms that jurisdiction is a creature of statute and no court can bestow it upon itself.

It was noted in one of the past decisions on the same point that expediency justifies deviation from the prescribed composition of the Constitutional court. This may be partly correct but it will never be applied to confer jurisdiction on any court. It is perhaps food for thought to amend the Constitution to provide for a smaller coram for interim relief applications. 

The spirit and letter of the Constitution should be respected regardless of the inconvenience that this could occasion litigants. Disregarding constitutional provisions is recipe for anarchy.

Recently, a number of decisions from the Constitutional court and particularly from one of the justices of this court have come into the spotlight as some sections of the public are dissatisfied with the decisions of this court. I trust the prescription of five justices was informed. Constitutionalism is at the heart of every thriving democracy.

Whilst this decision has generated public debate, it has also raised exciting questions of law, notably whether a court that has adjudged itself not to have jurisdiction can in the same breath make orders retrospectively nullifying previous decisions of the same court.

This ruling was purely on a technical point. The issue of jurisdiction was raised by court. This means that the justices had studied the matter before them and fully prepared to address this issue well in the know that the matter shall be determined on this point.

Going by the ruling, counsel did not have much input to this process. It is plausible that since court had reviewed the law on the jurisdiction of the Constitutional court and found the proper coram as five justices, it was necessary to make consequential orders that all previous orders issued by court in disregard to the Constitution are null and void.

Two of the justices in this matter declined to make such consequential orders but referred the matter to the registrar for placement before a full coram. Alternatively, if court does not have jurisdiction, it either dismisses the matter for want of jurisdiction or refers it to a court with appropriate jurisdiction.

It is arguable that a court without jurisdiction has no platform to make any additional orders beyond dismissing or referring the matter to an appropriate forum.

This is because such a court has not inquired into the matter on its merits. In sum, this decision is a step in the right direction on determination of key matters to society. Constitutional questions ought to be accorded the special treatment as set out in the Constitution.

Interestingly, coram to hear such matters is determined by the court, and not the litigant.

I trust the concerned authorities shall ensure that matters before the Court of Appeal or Constitutional court are placed before the proper coram at first instance, and not by reference.

It remains unclear whether a retrospectively nullified interim order issued by a single justice of the Constitutional court can be appealed if a party is aggrieved.

The author works at Masembe, Makubuya, Adriko, Karugaba and Ssekatawa Advocates (MMAKS).