Uganda v Commissioner of Prisons, Ex Parte Matovu

[1966] 1 EA 514 (HCU)

Division: High Court of Uganda at Kampala
Date of judgment: 2 February 1967
Case Number: 83/1966
Before: Sir Udo Udoma CJ, Sheridan and Jeffreys Jones JJ
Sourced by: LawAfrica
(Reference from High Court for Interpretation of the Constitution of Uganda.)
[1] Habeas corpus – Nature of writ and subjiciendum and procedure in Uganda – Necessity for an
originating motion and the naming of a respondent – Relief under Criminal Procedure Code, s. 349
compared with relief under the 1966 Constitution, Art. 32.
[2] Constitutional law – Revolution – Validity of the 1966 Constitution of Uganda – Whether its validity
a legal or political question – Judge’s duty to be satisfied that Constitution legally valid.
[3] Constitutional law – Protection of persons detained under emergency laws – Whether measures
reasonably justifiable for dealing with situation – Adequacy of statement of grounds for detention – 1966
Constitution of Uganda, Arts. 30 (5) and 31.
[4] Constitutional law – Whether emergency laws ultra vires the Constitution – The Emergency Powers
Act 1963 – Emergency Powers (Detention) Regulations 1966.
Editor’s Summary
The applicant was arrested under the Deportation Act on May 22, 1966, and then released and detained
again on July 16, 1966, under Emergency legislation which was brought into force after his first arrest.
On August 11, 1966, the applicant was served in prison with a detention order and a statement specifying
in general terms the grounds for his detention pursuant to art. 31(1)(a) of the Constitution of Uganda.
Between February 22, and April 15, 1966, a series of events took place which resulted in a resolution of
the National Assembly abolishing the 1962 Constitution of Uganda and adopting another referred to as
the 1966 Constitution. Prior to this the President and Vice-President of Uganda were deprived, contrary
to the 1962 Constitution, of their offices and divested of their authorities by the Prime Minister with the
consent of his cabinet. After the 1966 Constitution was adopted a state of public emergency was declared
and the Emergency Powers (Detention) Regulations 1966, were made. On September 9, 1966, habeas
corpus proceedings were taken out in the High Court on behalf of the applicant. Despite formal defects it
was possible to frame the constitutional issues to be referred to a bench of three judges of the High Court
Page 515 of [1966] 1 EA 514 (HCU)
for interpretation, namely, whether the application failed for non-compliance with art. 32 of the
Constitution and the Constitutional Cases (Procedure) Act; whether the emergency powers invoked to
detain the applicant were ultra vires the Constitution or were properly exercised, and whether the
constitutional rights of a person detained under emergency laws as preserved by art. 31 of the
Constitution, had been contravened. The court raised the question of the validity of the 1966 Constitution
to which the Attorney-General objected because either it arose from a political act outside the scope of
the court or it was the product of a successful revolution.
Held –
(i) the Sovereign State of Uganda would not allow anyone to be illegally detained and has the
prerogative right to enquire through its courts into anyone’s loss of liberty by issuing a writ of
habeas corpus, the nature and procedure of which was discussed;
( ii) the applicant’s choice of relief by writ of habeas corpus under s. 349 of the Criminal Procedure
Code was competent because art. 32 (1) of the Constitution and the civil procedure related to it
merely provided additional redress without prejudice to any other action that was lawfully
available to him;
(iii) the High Court in these circumstances was precluded from exercising its residuary original
jurisdiction under the proviso to art. 32 (2) of the Constitution;
(iv) this court could raise the question of the validity of the 1966 Constitution because it was relevant to
the issues under consideration;
(v) the judges were bound by the judicial oath to administer justice according to the Constitution as by
law established and it was an essential part of their duty to be satisfied that the constitution was
established according to law and that it was legally valid;
(vi) any decision by the judiciary as to the legality of the government could be far reaching, disastrous
and wrong because the question was a political one to be resolved by the executive and legislature
which were accountable to the constituencies, but a decision on the validity of the Constitution
was distinguishable and within the court’s competence;
( vii) the series of events which took place in Uganda from February 22 to April, 1966, were law
creating facts appropriately described in law as a revolution; that is to say there was an abrupt
political change not contemplated by the existing Constitution, that destroyed the entire legal order
and was superseded by a new Constitution, namely, the 1966 Constitution, and by effective
government;
(viii) t he Emergency Powers Act, 1963 and the Emergency Powers (Detention) Regulations 1966 were
not ultra vires art. 30 (5) of the Constitution, nor were the measures taken pursuant to these laws
unjustifiable by any appropriate subjective test;
(ix) the detention of the applicant under the Emergency Powers (Detention) Regulations 1966, reg. 1,
on an order signed by the minister was in accordance with art. 31 (1) of the Constitution except for
the statement of the grounds of his detention, which was inadequate;
( x) the failure to furnish the applicant with an adequate statement of the grounds of his detention could
be cured by a direction of the High Court under art. 32 (2) of the Constitution that a proper
statement be supplied;
Page 516 of [1966] 1 EA 514 (HCU)
Matter referred back for disposal in accordance with the court’s interpretation of the Constitution;
direction that a statement of the grounds of the detention be supplied.
Cases referred to in judgment
(1) Grace Stuart Ibingira and Others v. Uganda, p. 445, ante.
(2) R. A. Ukejianya v. J. I. Uchendu (1950/51), 13 W.A.C.A. 45.
(3) In re Parker (1839), 5 M. & W. 32.
(4) Ex parte Child (1854), 15 C.B. 238; sub nom. Re Fitzgerald, Ex parte Child, 2 C.L.R. 1801.
(5) Crowley’s Case (1818), 2 Swan. 1.
(6) R. v. Officer Commanding Depot Battalion R.A.S.C. Colchester, Ex parte Elliot, [1949] 1 All E.R.
373.
(7) Luther v. Borden (1849), 7 How 1.
(8) Baker v. Carr (1962), 369, U.S. 186, 217.
(9) The State v. Dosso and Another (1958), 2 Pakistan Supreme Ct. R. 180.
(10) King v. Halliday, [1917] A.C. 260.
(11) Liversidge v. Anderson and Another, [1941] 3 All E.R. 338.
(12) R. v. Home Secretary, Ex parte Green, [1941] 3 All E.R. 104.
(13) R. v. Metropolitan Police Commissioner, Ex parte Hammond, [1964] 2 Q.B. 385.
Judgment
Sir Udo Udoma CJ, read the following judgment of the court:
The substantial questions of law for determination by this court as to the interpretation of the
Constitution of Uganda involved in this application were first raised by Michael Matovu (hereinafter to
be referred to as the applicant) in his application for a writ of habeas corpus ad subjiciendum pursuant to
the provisions of s. 349 of the Criminal Procedure Code.
In due compliance with the provisions of the Constitution and at the request of counsel the questions
as framed by both counsel were referred to this court by Jeffreys Jones, J., sitting alone. In this court the
matter has been heard by three judges in terms of s. 2 of the provisions of the Constitutional Cases
(Procedure) Act (cap. 66).
Before dealing with the main questions referred to us, we think at this juncture that the original
application as presented to Jeffreys Jones, J., deserves some comment, particularly as the procedure
adopted by counsel in this case appears to have been followed in previous applications for the writ of
habeas corpus to the High Court. Indeed, there appears to be so much confusion as regards the procedure
which ought to be followed by counsel that it formed the subject of adverse comments by the Court of
Appeal for Eastern Africa in a recent case – Grace Stuart Ibingira and Others v. Uganda (1). In that case
the court not only noted that the Sovereign State of Uganda was made a respondent, but also expressed a
doubt as to its jurisdiction to entertain the appeal, which doubt we also share for two reasons not
necessary to go into in this judgment.
In the instant case we would observe that the original application consisted only of two affidavits, one
of which was properly sworn to by the applicant himself and the other by his counsel, which affidavit
was entitled and headed in the same manner as follows:
Page 517 of [1966] 1 EA 514 (HCU)
“In the High Court of Uganda at Kampala
Miscellaneous Cause No. 83 of 1966
In the Matter of a Writ of Habeas Corpus
and
In the Matter of an application by Michael Matovu.”
For the better appreciation of the comments to be made by this court we think it necessary that the two
affidavits should be and they are hereunder set forth in extenso:
“Affidavit
I, Michael Matovu make oath and say as follows:
1. T hat I am the Saza Chief Pokino, of Buddu, Buganda.
2. T hat on May 22, 1966, I was arrested and detained at Masindi Prison purportedly under the provisions
of the Deportation Ordinance.
3. T hat I was subsequently transferred to Luzira Prison where I was told that I had been released on
16/7/66.
4. T hat immediately after my release I was re-arrested when I was still inside the Prison compound and
was detained in Upper Prison, Luzira, where I am still being detained.
5. T hat on August 11, 1966, a detention order, under the Emergency Powers was served on me.
6. T hat on the same day, time and place a cyclostyled statement was served on me stating as follows:
To: Michael Matovu,
Luzira Prison.
Statement Required Under Section 31 (1) (s) of the
Constitution of Uganda
You are hereby notified that on August 10, 1966 the Minister of Internal Affairs signed an Order for your
detention under Regulation 1 of the Emergency Powers (Detention) Regulations 1966.
The grounds on which you are being detained are that you are a person who has acted or is likely to act in a
manner prejudicial to the public safety and the maintenance of public order.
(sgd.) W. J. Bell
SP/Cid
August 11, 1966.
Received by me on August 11, 1966, at 9.20 a.m. at Upper Prison.
(sgd.) M. Matovu
Served by me as above
Sgd. (Serving Officer)
7. T hat I am informed by my advocates and verily believe the same that notification of my detention was
published in the Uganda Gazette as General Notice No. 832 of 1966 dated August 19, 1966.
8. T hat for some considerable time I was not allowed to see my advocate at all and that when he
eventually came to see me in Prison on 22/8/66 I was not allowed to consult him except in the
presence and hearing of Police and Prison officials.
9. T hat on the 26/8/66 I appeared before a tribunal consisting of Mr. Justice Sheridan as Chairman and
M/s. Wanambwa and Inyoin.
Page 518 of [1966] 1 EA 514 (HCU)
10. T hat I am advised by my advocate and verily believe the same that my arrest and continued detention
is unlawful and unconstitutional.
11. T hat I therefore respectfully apply to this Honourable Court to issue forthwith a writ directing the
Minister of Internal Affairs and others who may have custody and/or control of me to have my body
before this Hon. Court immediately after receipt of such writ to undergo and receive all and singular
such matters and things as this Hon. Court shall then and there consider of and concerning me in this
behalf.
11. T hat what is stated hereinbefore is true to the best of my (sic) knowledge, information and belief.
Sworn at Luzira this August 25, 1966.
(sgd) M. Matovu
Deponent
Before me:
(sgd) A. V. Clerk
A Commissioner for Oaths, Kampala
Filed by:
Messrs. Abu Mayanja & Co.,
Advocates,
20 Kampala Road,
P.O. Box 3584
KAMPALA.”
“Additional Affidavit
I, Abubakar Kakyma Mayanja affirm that this is my name and handwriting and that the facts deposed to by
me in this affidavit are the truth, the whole truth and nothing but the truth:
1. T hat I am an advocate of this Honourable Court duly instructed by the applicant to conduct these
proceedings on his behalf.
2. T hat from the facts disclosed in his affidavit filed herein and dated 26/8/66 the following issues of law
arise and will be raised on behalf of the applicant at the hearing of this application, namely:
( a) A rticle 31(1)(a) of the Constitution of Uganda 1966 was not complied with in that the applicant
was not furnished with the statement required under that paragraph within the time specified
therein; nor did the statement specify in detail the grounds upon which he is detained.
( b) A rticle 31(1)(b) of the Constitution was not complied with since the notification of the
applicant’s detention was not published within the time specified.
( c) A rticle 31(1)(c) was not complied with in that the tribunal which reviewed the applicant’s case
on 26/8/66 was not established by law, nor, apart from the chairman, could it be said to have
been independent and impartial.
( d) L ikewise Art. 31(1)(d) was not complied with in that the applicant was not allowed to consult
his advocate in private, but had to do so in the presence and hearing of Government officials.
He was therefore, not afforded the facilities to which that paragraph entitles him. The applicant
will therefore contend that his detention is ultra vires the constitution.
3. T hat it will further be contended on behalf of the applicant that the Emergency Powers Act 1963 and
the Regulations made thereunder,
Page 519 of [1966] 1 EA 514 (HCU)
including the Emergency Powers (Detention) Regulations 1966, are ultra vires Art. 30 (5) of the
Constitution to the extent that the Act and the Regulations give the Government unfettered powers
which might be wider than those envisaged by the constitution, and which may not be legally
justiciable.
4. T hat it will also be contended that the Emergency Powers (Detention) Regulations, 1966 contained in
S.I. No. 65 of 1966 are ultra vires the Emergency Powers Act 1963 in that they do not specify the area
to which they apply, or they do not state that they were approved by a resolution of the National
Assembly, nor is there any legal notification to that effect.
5. T hat it will finally be argued on behalf of the applicant that he was illegally and unlawfully brought
within the emergency area and therefore the Emergency Regulations cannot apply to him.
6. T hat what is stated herein is true to the best of my knowledge, information and belief.
Affirmed at Kampala September 5, 1966.
(sgd.) A. Mayanja
Deponent
Before me:
(sgd.) A. V. Clerk
A Commissioner for Oaths
Filed by:
Messrs. Abu Mayanja & Co.,
Advocates,
20 Kampala Road,
P.O. Box 3584,
Kampala.
In our view the application, such as it was, as presented to the High Court in the first instance was
defective. Indeed but for the fact that the application concerns the liberty of a citizen, the court would
have been justified in holding that there was no application properly before it. In the first place the
affidavits as intituled and headed are defective. There is no respondent named against whom the writ is
sought and to whom the writ should issue. Surely a person or an official against whom an order of this
court is sought ought at least to be named in, if not made a party to, the proceedings. Otherwise the court
might be in difficulty when it comes to the execution of its order; and, in law a court cannot make an
unenforceable order. (See R. A. Ukejianya v. J. I. Uchendu (2).) This would be more so in an application
of this kind in which the extraordinary prerogative judicial power of the court is invoked.
The applicant would appear to have been in some doubt himself as to who was actually detaining him
and against whom the writ ought to issue. For even in the first para. 11 (there being two paragraphs
numbered 11 shown in the affidavit) of his affidavit, which might be regarded as containing his prayer to
the court, if prayers were permissible in an affidavit, the applicant merely says “I therefore respectfully
apply to this Honourable Court to issue forthwith a writ directing the Minister of Internal Affairs and
others who may have custody or control of me or both to have my body before this Honourable Court
Immediately after receipt of such a writ to undergo and receive all and singular such matters and things
as this Honourable Court shall then and there consider of and concerning me in this behalf”.
In the second place the fact that the two affidavits were not accompanied by notice of motion or a
motion paper signed by the counsel for the applicant setting out the relief sought and the grounds
entitling the applicant to such a
Page 520 of [1966] 1 EA 514 (HCU)
relief was so fundamental a defect as to be almost incurable. In effect it meant that there was in fact and
law no application capable of being entertained properly before the court.
As a general rule of practice, an application for a writ of habeas corpus must be made by what may be
termed an “originating motion”, so termed because it originates the proceedings, supported by an
affidavit sworn to by the person restrained showing that the application is made at his instance and that
he is illegally restrained. Such an affidavit however may be made by some other person where the
applicant is so coerced as not to be able to make one. (See Re Parker (3); Ex parte Child (4), and Short
and Mellor, The Practice on the Crown Side of the King’s Bench Division (2nd Edn.) at p. 319.).
It would appear that because there was no motion paper filed counsel for the applicant was driven to
filing in court another affidavit sworn to by him personally, in which he set out in detail the grounds of
law upon which he proposed to rely in support of his application.
The affidavit sworn to by counsel is also defective. It is clearly bad in law. Again, as a general rule of
practice and procedure, an affidavit for use in court, being a substitute for oral evidence, should only
contain statements of facts and circumstances to which the witness deposes either of his own personal
knowledge or from information which he believes to be true. Such an affidavit must not contain an
extraneous matter by way of objection or prayer or legal argument or conclusion. The affidavit by
counsel in this matter contravenes O. 17, r. 3 of the Rules of this Court and should have been struck out.
As was said by Lord Eldon, L.C., in Crowley’s case (5), quoting from Hale’s History of the Common
Law:
“The writ of habeas corpus is a very high prerogative writ, by which the King has a right to enquire the cause
for which any of his subjects are deprived of their liberty.”
And in Cornes Crown Practice mentioned in 2 Halsbury’s Laws at p. 24, footnote (e) it is declared:
“If any man be imprisoned by another a corpus causa, i.e. habeas corpus can be granted by the court (of
King’s Bench) to those who imprison him for the King ought to have an account rendered to him concerning
the liberty of his subjects and the restraint thereof.”
This doctrine appears to have been founded on the principle that every subject of the crown was entitled
to protection exercised by the crown through the court of King’s Bench. Historically the court of King’s
Bench seemed originally to have been a committee of the Curia Regis, and derived its title from the fact
that the sovereign formerly sat in the court himself. The court very early acquired the character of a true
court of justice. Hence it followed that whether the King was actually present or not judgment could only
be given by his judges. Later the doctrine was developed that the King could not be a judge in his own
cause especially with regard to prerogative writs, which were usually taken out in the name of the King.
The theory of the King’s presence was however kept up and the fiction that all proceedings in the
court were before the King has produced many consequences, one of which being that all processes are
usually issued in the Kings’s name, and orders or summonses from the court are issued in the form of a
command by the King.
“ ‘The court of King’s Bench’, says Lord Coke, ‘has not only jurisdiction to correct errors in judicial
proceedings but also other errors and misdemeanours extra judicial tending to the oppression of the subject. If
therefore any
Page 521 of [1966] 1 EA 514 (HCU)
person is committed to prison, this court upon motion ought to grant habeas corpus: and upon return of the
cause, do justice and relieve the party wronged.”
(See: The introduction to Short and Mellor, The Practice on the Crown Side of the King’s Bench
Division (2nd Edn.).)
It is plain therefore that even at the time of Lord Coke an application for the writ of habeas corpus
was always commenced in the name of the Crown on the principle that the Crown would not suffer its
subjects to be illegally detained with impunity. For instance in R. v. Officer Commanding Depot
Battalion R.A.S.C. Colchester, Ex parte Elliott (6), which was an application for the writ of habeas
corpus by one Elliott against the Officer Commanding Depot Battalion R.A.S.C. Colchester, the
application was headed as hereunder set forth:
“R. v. The Officer Commanding Depot Battalion R.A.S.C. Colchester, Ex parte Elliott.”
The application was entitled in the King’s Bench Division.
By analogy on the principles enunciated above as developed by the common law, the presumption in
Uganda ought to be that the Sovereign State of Uganda would not suffer any of its citizens to be illegally
detained; and therefore has the prerogative right through its courts of enquiring into the cause or causes
for which such a citizen has been deprived of his liberty. On that presumption then the application in the
instant case should have been commenced by motion in the name of the Soverign State of Uganda; and,
having regard to the allegations in the affidavit of the applicant, it should have been intituled and headed
thus:
“In the High Court of Uganda
Holden at Kampala
In the Matter of Uganda
v.
The Commissioner of Prisons, Uganda
Ex parte Michael Matovu;”
In which event the Commissioner of Prisons would have been the respondent since the applicant was
detained in Luzira Prison.
On examining the papers in this matter our first reaction was to send the case back to the judge with a
direction that the matter be struck off as we were of the opinion that there was no application for a writ of
habeas corpus properly before him. There was no motion in support of which the two affidavits were
filed, it appearing that counsel for the applicant had erroneously treated the affidavits filed as the
application. Furthermore, there was no respondent mentioned in the affidavits as headed.
On reflection, however, bearing in mind the facts that the application as presented in the first instance
was not objected to by counsel who had appeared for the state; that the liberty of a citizen of Uganda was
involved; and that considerable importance was attached to the questions of law under reference since
they involved the interpretation of the Constitution of Uganda; we decided, in the interests of justice, to
jettison formalism to the winds and overlook the several deficiencies in the application, and thereupon
proceeded to the determination of the issues referred to us.
We turn now to the subject-matter of this reference and start off by summarising the events, facts and
circumstances leading to and culminating in this reference.
On February 22, 1966, the then Prime Minister of Uganda issued a statement headed “Statement to the
Nation by the Prime Minister”, annexure A, declaring
Page 522 of [1966] 1 EA 514 (HCU)
that in the interests of national stability and public security and tranquility he had taken over all powers
of the Government of Uganda. The statement is of great importance and we therefore reproduce it
hereunder. It reads:
“In the interest of national stability and public security and tranquility, I have today – February 22, 1966 –
taken over all powers of the Government of Uganda.
I shall henceforth be advised by a council whose members I shall name later. I have taken this course of
action independently because of the wishes of the people of this country for peace, order and prosperity.
Five former ministers have today been put under detention pending investigations into their activities.
I call upon the judges and magistrates, civil servants – both Uganda and expatriate – members of the security
forces and the general public to carry on with their normal duties.
I take this opportunity to assure everybody that the whole situation is under control.”
On February 24, 1966 there followed another statement made to the nation by the then Prime Minister,
annexure B, in which, among other things, the Prime Minister disclosed that he had been forced to take
“certain drastic measures” because of events and “unwelcome activities of certain leading personalities”,
who had plotted to overthrow the Government; that during his tour of the Northern Region of Uganda
early in the month an attempt was made to overthrow the Government by the use of foreign troops; and
that certain members of the Government had requested foreign missions for military assistance consisting
of foreign troops and arms for the purpose of invading the country and overthrowing the Government of
Uganda.
The Prime Minister then declared:
“The Constitution (of Uganda) shall be suspended temporarily with effect from 7 o’clock tonight.
In order however to provide for effective administration for the smooth running of the Government machine
and also for the promotion of unity the following subjects contained in the Constitution [said the Prime
Minister] shall be preserved:
(a) The Courts, Judges and Magistrates;
(b) The Civil Service;
(c) The Army, Police and Prison Services;
(d) The Rulers of Federal States and Constitutional Heads of Districts;
(e) The District Administration and Urban Authorities;
(f) The Schedules to the Constitution of Uganda; and
(g) The National Assembly.”
There was to be established a council composed of ministers including the Attorney-General and certain
members of the armed forces and the police. The ministerial portfolios were to function as before and
certain vacancies caused by the absence of the ministers under detention were to be filled. The statement
ended with an appeal to the people to remain calm and to co-operate with the security forces in the
maintenance of law and order.
On February 25, 1966, the statement and declaration contained in annexure B were repeated and more
elaborately spelt out in annexure C, which established a security council of which the Prime Minister was
chairman. In annexure C however, which was signed by all the ministers then supporting the Prime
Minister, item (f) in annexure B was omitted.
Page 523 of [1966] 1 EA 514 (HCU)
On March 2, 1966, annexure D was published. In it the Prime Minister declared that acting with the
advice and consent of the cabinet:
“(a) The executive authority of Uganda shall vest in the Prime Minister and shall be exercised by the Prime
Minister acting in accordance with the advice and consent of the cabinet; and
(b) The duties, powers and other functions that are performed or are exercisable by the President or
Vice-President immediately before February 22, 1966, shall vest in the Prime Minister by and with the
advice and consent of the cabinet.”
Thus by that declaration both the President and Vice-President of Uganda were not only deprived of their
offices, but divested of their authorities. Immediately thereafter the President of Uganda was forcibly
ejected from state house, which is the official residence of the President of Uganda.
For the proper appreciation of the state of affairs and the changes purported to have been made by the
above mentioned statements and the declaration, we pause here to note that the Constitution referred to in
the statement of February 24, 1966, was the Constitution of Uganda promulgated by the authority of the
Uganda (Independence) Order in Council 1962, which came into force on October 9, 1962, and
subsequent amendments thereto. Throughout this judgment therefore that Constitution will hereinafter be
referred to as the 1962 Constitution.
In the 1962 Constitution, the offices of President and Vice-President of Uganda were created by arts.
34 and 35, the President being therein described as the Supreme Head and Commander in Chief of
Uganda. The provision of art. 37 was that the Parliament of Uganda should consist of the President and
the National Assembly, while arts. 61, 62, 64 and 65 vested the President with the executive authority of
Uganda with power to appoint a Prime Minister; and thereafter, acting in accordance with the advice of
the Prime Minister, to appoint other Ministers, including the Attorney General; and to assign to such
Ministers responsibilities for the business of Government, including the management of Departments.
In art. 36 it was provided that the President and the Vice-President might at any time be removed from
office by a resolution of the National Assembly, moved either:
“(a) by the Prime Minister; or
(b) by a member of the Assembly other than the Prime Minister who satisfies the Speaker that not less
than one half of all the members of the Assembly have signified in writing the intention to vote in
support of the resolution, and which is supported by the votes of not less than two-thirds of all the
members of the Assembly.”
In other words, by this article, the President and Vice-President could not be removed from their office
except by a resolution passed by the votes of not less than two-thirds of all the members of the National
Assembly.
To return to the chronology of events. On March 5, 1966, the Prime Minister issued another
statement, annexure E. The statement was in reply to a press report purported to have been published by
Sir Edward Mutesa who, until February 22, 1966, when the Prime Minister seized all the power of
Government, was the President and Supreme Head and Commander in Chief of Uganda. In his statement,
the Prime Minister pointed out that in the press statement made by Sir Edward Mutesa the latter had
openly admitted that unknown to him as Prime Minister or any of his Cabinet Ministers, he, Sir Edward,
had made
Page 524 of [1966] 1 EA 514 (HCU)
request for military assistance from foreign countries as a precautionary measure, because there were
then rumours current in the country that troops were being trained somewhere in the country for the
purpose of overthrowing the Constitution.
Then on April 15, 1966, at an emergency meeting of the National Assembly, the following resolution,
annexure F at p. 20, which was proposed by the Prime Minister was passed:
“Whereas in the interest of national stability, public security and tranquility, the Prime Minister, on February
22, 1966, suspended the then Constitution of Uganda and took over all the powers of the Government as a
temporary measure.
And whereas the Government, on February 24, 1966, approved the action taken by the Prime Minister in
order to ensure a speedy return tot he normality which existed before the occurrence of the events which led
to the suspension of the Constitution, and
Whereas it is desirable, in order to return to the state of normality that a Constitution should be adopted.
Now, therefore, we the people of Uganda hereby assembled in the name of Uganda do resolve and it is hereby
resolved that the Constitution which came into being on October 9, 1962, be abolished, and it is hereby
abolished accordingly, and the Constitution now laid before us be adopted this day of April 15, 1966, as the
Constitution of Uganda until such time as the Constituent Assembly established by Parliament enacts a
Constitution in place of this Constitution.”
On the adoption of the Constitution of April 15, 1966 (hereinafter to be referred to as the 1966
Constitution) oaths under the new Constitution were administered to the Prime Minister, who thereupon
by virtue of provisions of art. 36 (6) of the new Constitution became automatically by operation of law
elected President and the Head of State and Commander in Chief of the Sovereign Stat of Uganda.
Thereafter oaths were administered to members of the National Assembly, both Government supporters
and Opposition and other Officials of State. Members of the National Assembly were only able to take
their seats in the State Assembly after the taking of the oath under the new Constitution.
On May 22, 1966, the applicant was arrested and detained at Masindi Prison under the Deportation
Act (Cap. 308). He was subsequently transferred to Luzira Prison within the Kingdom of Buganda.
On May 23, 1966, by proclamation, Legal Notice No. 4 of 1966, a state of public emergency was
declared to exist in Buganda Kingdom; and on May 25, 1966 by a resolution of the National Assembly
the proclamation was affirmed and Emergency Powers Act (Cap. 307), and regulations made thereunder
including the Emergency Powers (Detention) Regulations 1966, Statutory Instrument No. 65 of 1966
were brought into force and in full operation.
On July 16, 1966, the applicant was released and ordered to go. Soon thereafter at about 12.45 p.m. as
the applicant stepped out of prison, he was rearrested and detained again in Luzira Prison.
Then on August 10, 1966, acting under the authority vested in him by reg. 1 of the Emergency Powers
(Detention) Regulations 1966, the Minister of Internal Affairs ordered the detention of the applicant.
That Order, together with the statements purported to have been made in due compliance with art.
31(1)(a) of the Constitution of Uganda was served on the applicant in prison on August 11, 1966.
Page 525 of [1966] 1 EA 514 (HCU)
On August 19, 1966, the detention of the applicant was gazetted in General Notice No. 832 of 1966.
On August 26, 1966, the applicant appeared for the review of his case before a tribunal, the establishment
of which was in terms of the provisions of art. 31(1)(a) of the Constitution gazetted as General Notice
No. 776 of 1966 of August 5, 1966.
On September 6, 1966, the applicant filed what purported to be an application for a writ of habeas
corpus. On September 14, 1966, the application came before Jeffreys Jones, J., who, as already stated, in
view of the important questions of law involved as to the interpretation of the Constitution of Uganda
raised in the application, referred the questions to this court; and directed that both counsel should frame
the issues of law in controversy for determination by this court.
The issues as framed which came before this court fell under three heads and are as follows:
“1. Whether, having regard to the procedure laid down in art. 32 of the Constitution and in the
Constitutional Cases (Procedure) Act (cap. 66) and in the rules made thereunder the procedure adopted
in the present application is the proper procedure.
2. W hether the Emergency Powers Act 1963, and the Emergency Powers (Detention) Regulations 1966,
or any material parts thereof are ultra vires the Constitution to the extent that the Act and the
regulations enable the President to take measures or authorise the taking of measures that may not be
reasonably justifiable for the purpose of dealing with the situation that existed during the period when
a declaration of a state of public emergency is in force within the meaning of art. 30 (5) of the
Constitution – and
3. W hether any of the provisions of art. 31 (1) of the Constitution have been contravened in relation to
the applicant having regard to the affidavits filed herein by and on behalf of the applicant on the one
hand, and on behalf of the State on the other hand.”
In support of the first issue, the learned Attorney-General submitted for the respondent that it was
contrary to the Constitution that the applicant should have proceeded by way of habeas corpus since art.
32 (1) and (2) of the Constitution has prescribed the procedure to be followed whenever there was an
allegation that the provisions of arts. 17 to 29 including clause (1) of art. 31 have been contravened; that
the writ of habeas corpus is a statutory relief created in s. 349 of the Criminal Procedure Code and
therefore inferior to the procedure and relief provided by art. 32 of the Constitution, the Constitution
being the supreme law of the land; that by bringing his application by way of habeas corpus for the
purpose of having the Constitution interpreted, the applicant was indirectly preparing the way to take the
matter to the Court of Appeal by the back door, whereas by virtue of the provisions of art. 96 (b), the
Court of Appeal has no jurisdiction to entertain appeals on the question of the interpretation of the
Constitution; and that the proper procedure for raising such constitutional matters as were involved in
this case was to follow the procedure set out in the Civil Procedure (Fundamental Rights and Freedoms)
Rules 1963, Legal Notice No. 13 of 1963, made under the provisions of s. 3 of the Constitutional Cases
(Procedure) Act.
The relevant provisions of art. 32 relied upon by the learned Attorney-General are in the following
terms:
“32(1) Subject to the provisions of cl. (5) of this article, if any person alleges that any of the provisions of
arts. 17 to 29 inclusive or cl. (1) of
Page 526 of [1966] 1 EA 514 (HCU)
art. 31 of this Constitution has been, is being or is likely to be contravened in relation to him, then,
without prejudice to any other action with respect to the same matter that is lawfully available, that
person may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction to hear and determine any application made by any
person in pursuance of cl. (1) of this Article, and may make such orders, issue such writs and given
such directions as it may consider appropriate for the purpose of enforcing, or securing the
enforcement of, any of the provisions of the said arts. 17 to 29 inclusive, or cl. (1) of art. 31 of this
Constitution, to the protection of which the person concerned is entitled;
Provided that the High Court shall not exercise its powers under this clause if it is satisfied that adequate
means of redress for the contravention alleged are or have been available to the person concerned under any
law.”
While it is true that under art. 96 (b) of the Constitution, there is no right of appeal from the decision of
this court to the Court of Appeal on any question as to the interpretation of the Constitution, yet, it is
difficult to see how in an application for a writ of habeas corpus in which the main complaint by the
applicant is that his detention is illegal for noncompliance with regulations made under an Act of
Parliament, and that even the Act of Parliament relied upon by the executive in detaining him is ultra
vires the Constitution, the question as to the interpretation of the Constitution could be avoided even if
the application was brought under art. 32 (1) and (2) of the Constitution and in accordance with the
procedure prescribed by r. 7 of Legal Notice No. 13 of 1963 – The Procedure (Fundamental Rights and
Freedoms) Rules 1963.
In any event, under the proviso to art. 32 (2) of the Constitution, the High Court is precluded from
exercising its powers under the clause if it is satisfied that adequate means of redress for the
contravention alleged are or have been available to the person concerned under any law. We are of
opinion that an application for a writ of habeas corpus, which is a statutory remedy created by the law of
this country, is one of the means of redress open to the applicant.
We have, however, more than once pointed out that this court was sitting not as a court to hear an
application for the writ of habeas corpus, but as a constitutional court concerned with the interpretation
of the provisions of the Constitution in the light of the issues referred to us in terms of the provisions of
art. 95 of the Constitution. Our duty is therefore clear. It is to interpret the Constitution and thereafter
direct that the matter concerned, in so far as it relates to the question of interpretation of the Constitution,
be disposed of in accordance with our decision.
It is our view that we are not sitting here as a Court of Appeal, and therefore the question as to
whether there is a right of appeal to the Court of Appeal is a matter within the competence of that court.
On the other hand, if there is any conflict between the provisions of the Constitution; or if a particular
provision of the Constitution produces results never intended that certainly is not a matter for this court.
The learned Attorney General is well aware of the proper quarters to which reference should be made in
that regard.
Having given consideration to the submissions of the learned Attorney-General in respect to the
procedure which has been followed in the instant case, we are of opinion that the submissions are
unsound. The objection must be and it is over-ruled. It is clear that the provisions of art. 32 (1) expressly
reserve to any person to whom they apply additional right to redress in the High Court. The provisions of
art. 32 are without prejudice to any other action with respect to the same matter that is lawfully available
to the persons concerned.
Page 527 of [1966] 1 EA 514 (HCU)
We hold that this application and reference are competent. (See: Unreported decision of this court in
Miscellaneous Criminal Applications Nos. 9 and 31/35 of 1966, Re Emmanuel Sajjalyabene Lumu and
Four Others.) Our answer therefore to the first question is in the affirmative.
In the course of his submissions on the second issue, to which we shall later revert, as to “whether the
Emergency Powers Act 1963, and the Emergency Powers (Detention) Regulations 1966, or any material
parts thereof are ultra vires the Constitution to the extent that the Act and the Regulations enable the
President to take measures that may not be reasonably justifiable for the purpose of dealing with the
situation that exists during the period when a declaration of a state of public emergency is in force within
the meaning of art. 30 (5) of the Constitution”, reference was made to the affidavit filed in these
proceedings by the learned Solicitor-General dated September 10, 1966.
In para. 8 of the said affidavit, the learned Solicitor-General swore: “That the Constitution of Uganda,
as by law established, is the supreme law of the land”. As there were then before the court two
Constitutions, one being the 1962 Independence Constitution, while the other was the 1966 Constitution
promulgated as already stated in April, 1966, the court ex proprio motu raised the question of the validity
of the 1966 Constitution.
When questioned by the court, counsel for the applicant observed that, although as a realist, he
himself had accepted the Constitution as valid he was in some doubt as to its real validity in law. On the
other hand the learned Attorney-General vigorously maintained that the 1966 Constitution was legally
valid, it having been properly and legally promulgated by the representatives of the people of Uganda.
The court thereupon felt compelled to enquire into the legal validity of the 1966 Constitution and
consequently called upon the learned Attorney-General to satisfy it that the 1966 Constitution
(hereinafter to be referred to as the Constitution) was valid in law.
The learned Attorney-General then submitted that, although he would concede to the court as a Court
of Record the right to raise any question relevant to the issues in controversy between the parties, he felt
that in the matter of the kind under enquiry, the court was not competent to enquire into the validity of
the Constitution on three grounds, namely:
1. T hat since the issues framed and referred to the court and the application and the affidavits filed by the
applicant were based on the validity of the Constitution, it was not competent for the court to go
behind those issues and the application, the validity of the Constitution not being one such issue;
2. T hat as judges of the High Court of Uganda, the court was precluded from enquiring into the legal
validity of the Constitution by reason of their judicial oath; and
3. T hat the court had no jurisdiction to enquire into the validity of the Constitution because the making of
a constitution is a political act and outside the scope of the functions of the court.
3. ( a) Alternatively, counsel also submitted that the court was bound to declare the Constitution valid, if
it should undertake to enquire into its validity, because the Constitution was the product of a
successful revolution.
We propose to deal with these objections seriatim. We are of opinion that the first of these objections is
based on a complete misconception of the functions of this court as well as of the relevance of the
objection itself. It is the duty of any Court of competent jurisdiction, in order to do justice according to
law and to satisfy its conscience, to raise all such questions of law which it considers
Page 528 of [1966] 1 EA 514 (HCU)
relevant for the proper determination of the questions in controversy between parties; and it is the court
alone, which is competent to determine what is and what is not relevant to the issues under consideration.
It seems to us that the learned Attorney-General appeared to have confused the position and authority of
this court to raise any question it considers relevant in this matter with the position of a party in a
proceeding to raise a question, in the course of his submissions, which did not originally form part of his
case. The objection would have been perfectly sound if the question of the validity of the Constitution
had been raised by the counsel for the applicant; for then, he would be met by the objection that he was
estopped in pais as such a question did not form part of his case, especially as he had admitted in his
application by implication that the Constitution was valid in law. We are therefore of the view that this
objection is unsound and must be, and we accordingly over-ruled it.’
As regards the second objection that by reason of the judicial oath this court is precluded from
questioning the validity of the Constitution, the learned Attorney-General referred the court to s. 93 of
the 1962 Constitution, in which it was provided:
“That a judge shall not enter upon the duties of his office unless he has taken and subscribed the oath of
allegiance and such oath for the due execution of his office as may be prescribed by Parliament;”
and also to s. 5 of the Uganda (Independence) Order in Council, the provisions of which are as follows:
“5(1) Where any office has been established by or under the provisions revoked by s. 2 of this Order and the
Constitution of Uganda establishes a similar or an equivalent office, any person who immediately
before the commencement of this Order holds or is acting in the former office shall, so far as is
consistent with the provisions of this Order, be deemed to have been appointed as from the
commencement of this order to hold or to act in the latter office in accordance with the provisions of
this Order and to have taken any necessary oath under this Order.”
Section 5 of the Oaths Act (Cap. 52) similarly exempts judges from again physically taking both the oath
of allegiance and the judicial oath.
The learned Attorney-General then submitted that on February 22, 1966, when the Prime Minister
seized all the powers of Government thereby deposing, as it were, the then President and Vice-President
in the circumstances already indicated in this judgment, he had made a special appeal to the Judges and
Magistrates to carry on with their normal duties as the whole situation was then under control; and that
when on February 24, 1966, the 1962 Constitution was suspended, the Courts, Judges and Magistrates
were preserved. Counsel contended that it was in response to the appeal of the Prime Minister that judges
of the High Court of Uganda had continued in their posts.
The learned Attorney-General further drew the attention of the court to art. 127 (1) of the 1966
Constitution, which reads as follows:
“127 (1) Subject to the provisions of this Article every person who immediately before the
commencement of this Constitution held or was acting in any office established by or in
pursuance of the Constitution as then in force shall, so far as is consistent with the
provisions of this Constitution, be deemed to have been appointed as from the
commencement of this Constitution to hold or to act in the equivalent office under this
Constitution and to have complied with any requirement of this Constitution or of any
other law to take and subscribe any oath on appointment or election to that office.”
Page 529 of [1966] 1 EA 514 (HCU)
Counsel then submitted that in virtue of the above provisions, all judges are deemed to have been
reappointed and to have taken and subscribed the oath on the coming into operation of the 1966
Constitution; and therefore it was not competent for the court to enquire into the validity of the
Constitution under which they were appointed, as it was its duty to preserve, protect and defend that
Constitution in terms of the oath of allegiance under the Oaths Act (Cap. 52).
These certainly are weighty and formidable submissions brilliantly and eloquently presented. They
have a great force behind them. They appear at first sight almost unassailable and unanswerable. On a
closer examination, however, of the two oaths, namely the oath of allegiance and the judicial oath, it
seems clear that the submissions over-simplify the position. In his submissions, the learned
Attorney-General would appear to have overlooked the judicial oath itself and to have over-emphasised
the oath of allegiance. To be able to appreciate the subtle difference between the two oaths, it is
necessary, we think, that both be and are hereunder set forth as they appear in the First Schedule to the
Oaths Act (Cap. 52):
“1. O ath Of Allegiance
I ............................................ swear that I will be faithful, and bear true allegiance to the Sovereign State of
Uganda and that I will preserve, protect and defend the Constitution of Uganda. So help me God.”
And
“ 2. J udicial Oath
I ............................................ swear that I will well and truly exercise the judicial functions entrusted to me
and will do right to all manner of people in accordance with the Constitution of the Sovereign State of
Uganda as by law established and in accordance with the laws and usage of the Sovereign State of Uganda
without fear or favour, affection or ill will. So help me God.”
There is neither dispute nor doubt that the Judges of this Court do bear true allegiance to the Sovereign
State of Uganda. That was never questioned by the learned Attorney-General. Indeed their remaining in
their posts in response to the appeal by the Prime Minister already referred to, and on which the learned
Attorney-General relied, is a clear testimony of their loyalty.
There is certainly an indisputable difference in the wording of the two oaths. But, in our view, this
difference is more apparent than real; for both the oaths speak of the Constitution of Uganda and could
only mean the one and the same Constitution. According to the judicial oath, a judge is sworn to do right
to all manner of people in accordance with the Constitution of the Sovereign State of Uganda as by law
established; but in the oath of allegiance, he undertakes to preserve, protect and defend the constitution.
The question which naturally arises is: which Constitution is the judge sworn to defend? Could it be a
Constitution not established by law? The answer without doubt must be that it is the Constitution of the
Sovereign State of Uganda as by law established. That must be the position, because a judge, sitting in
court, cannot normally be expected to preserve, protect and defend an illegal Constitution, that is to say,
a Constitution which is not by law established.
It is a trite saying that justice must not only be done but must be seen to have been done. Having
regard to the wording of the judicial oath, and since the presumption must be that both the oath of
allegiance and the judicial oath mean the same Constitution, for there cannot be two Constitutions of
Uganda in force at the same time, it must follow that the oath of allegiance in so far as it refers to the
Constitution is incomplete. In order to bring it into line with the
Page 530 of [1966] 1 EA 514 (HCU)
judicial oath, there ought to be added the words “as by law established” after “Constitution”.
Be that as it may, there can be no doubt whatsoever that the judges of this court are bound by the
judicial oath to administer justice according to the Constitution of the Sovereign State of Uganda as by
law established and in accordance with the laws and usage of the Sovereign State of Uganda without fear
or favour, affection or illwill.
One of the main functions of this court prescribed by the Constitution is the interpretation of the
constitution itself. If it is the duty of this court to interpret the Constitution of the Sovereign State of
Uganda it seems to us an extraordinary proposition to submit that this court cannot enquire into the
validity of the Constitution. It would be difficult to sustain such a proposition. In our view, since it is the
duty of the judges of this court to do right to all manner of people in accordance with the Constitution of
the Sovereign State of Uganda as by law established, it must follow as the night follows the day, that it is
an essential part of the duty of the judges of this court to satisfy themselves that the Constitution of
Uganda is established according to law and that it is legally valid. The objection under this head cannot
therefore be sustained.
The learned Attorney-General contended, under his third ground of objection, that this court has no
jurisdiction to entertain any question concerning the validity of the Constitution; that since there are three
arms of Government, the legislature, the executive and the judiciary, it was the duty of the legislature and
the executive to decide the issue as to the validity of the Constitution, the issue being a political one, that
the duty of the court was to accept that decision and merely interpret the Constitution as presented to it;
that the members of the legislature, who had passed the Constitution, did so as representatives of their
constituencies to which they must account; that since judges were not elected but appointed by the
executive and therefore represented no specific constituencies to which to give account of their
stewardship, the court would be usurping the function of the legislature, and, indeed, of the people of
Uganda as represented in the legislature, if it undertook to enquire into and to pronounce on the validity
or otherwise of the Constitution; and that the court, if by any chance, should come to the conclusion that
the Constitution was invalid, the effect of such a decision would be far-reaching and disastrous and
would even effect the position of the judges themselves, because the old Constitution having been
annulled, all the judges are now operating the new Constitution from which their post is derived.
In the course of his submission, the court was referred to the 1963 revised and annotated edition of the
Constitution of the United States of America, art. III, s. 2 at p. 611; and to the case of Luther v. Borden
(7).
The passage of the American Constitution to which we were referred reads as follows:
“The rule has been long established that the courts have no general supervisory power over the executive or
administrative branches of Government.”
The concept of “political question” is an old one. As early as Marbury v. Madison, Marshall, C.J., stated:
“The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive,
or executive officers, perform duties in which they have a discretion. Questions in their nature political, or
which are by the Constitution and Laws, submitted to the executive, can never be made in this court. The
concept, as distinguished from that of
Page 531 of [1966] 1 EA 514 (HCU)
interference with executive functions, was first elaborated in Luther v. Borden (7), which involved the
meaning of ‘a republican form of government’ and the question of the lawful government of Rhode Island
between two competing groups purporting to act as the lawful authority.
“‘It is the province of the court to expound the law, not to make it’, declared Taney, C.J.”
It may be observed that this exposition of legal principles cannot be faulted. It is a sound doctrine if one
may say so with respect, but the question which must be asked is: What is a political question in terms of
this doctrine? And the answer is not far to seek. It is set out at p. 612 of the same Constitution based, it is
suggested, on the decision in Luther v. Borden (7), and more particularly elaborated upon in Baker v.
Carr (8). In Luther v. Borden (7) a political question is defined as “a question relating to the possession
of political power, of sovereignty, of government, determination of which is based on Congress and the
President, whose decisions are conclusive on the courts”.
The Constitution goes on to state that the more common classifications of cases involving political
questions are:
1. T hose which raise the issue of what proof is required that a Statute has been enacted, or a
constitutional amendment ratified;
2. Q uestions arising out of the conduct of foreign relations;
3. T he termination of wars of rebellions;
4. T he question of what constitutes a republican form of government, and the right of a State to
protection from invasion or domestic violence; questions arising out of political actions of a State in
determining the mode of choosing presidential electors, and reapportionment of district for
congressional representation; and suits brought by States to test their so-called sovereign rights.
It is noteworthy that the question of the validity of a constitution is not included in this somewhat
exhaustive and formidable list.
A photostat copy of the judgment of the Supreme Court in Luther v. Borden (7) relied upon by the
learned Attorney-General was kindly supplied to us. The facts of the case were briefly that at the time of
the American Revolution, Rhode Island did not, like other States, adopt a new constitution, but was
content to continue with the form of government established by the Charter granted to it by Charles II in
1663, but making only such alterations, by Acts of the Legislature, as were necessary to adapt it to their
condition and rights as an independent state. But no mode of proceedings was pointed out by which
amendments might be made.
In 1841, a portion of the people held meetings and formed associations, which resulted in the election
of a convention to form a new constitution to be submitted to the people for their adoption or rejection.
The convention framed a constitution, directed a vote to be taken on it, declared afterwards that it had
been adopted and ratified by a majority of the people of the State, and was the paramount law and
constitution of Rhode Island.
Under the Constitution, elections were held for the post of Governor, Members of the Legislature and
other officers, who assembled together in May, 1842, and proceeded to organise the new government.
But the Charter Government, which had been governing the Island since 1663, did not admit the
validity of or acquiesce in these proceedings. On the contrary, it passed stringent laws, and finally passed
an act declaring the State under martial law; and since the new government established by the voluntary
convention refused to yield, the Charter Government proceeded to call out the militia to
Page 532 of [1966] 1 EA 514 (HCU)
repel the threatened attack by the new government and those who were engaged in it, whom it treated as
rebels.
In May, 1843, a new constitution, which had been promulgated by a convention called together by the
Charter Government, went into operation and since then remained in office as the established and
effective government of Rhode Island.
During the operation of the Martial law declared by the Charter Government, a large number of
people, including the plaintiff, Martin Luther, who belonged to the government which had been
established by the voluntary convention in 1841, rose in opposition to the Charter Government, and with
a view to overthrowing it by military force, actually levied war upon the State under the effective control
of the Charter Government.
The defendant, Luther M. Borden, with other supporters of the Charter Government was then in the
military service of the State, and by the command of his superior officer broke and entered into the house
and conducted a search of the rooms of the plaintiff, who was then supposed to be in hiding, for the
purpose of having him arrested.
Subsequently the plaintiff brought an action of trespass against the defendant in the Circuit Court of
Rhode Island. In his defence, the defendant pleaded that in breaking into the plaintiff’s house, he had
done so for the purpose of suppressing insurrection against the legitimate government of Rhode Island,
which was the Charter Government.
The question for decision by the court was therefore: Which of the two opposing governments was the
legitimate government of Rhode Island? Which in effect meant that the existence and authority of the
Charter Government under which the defendant acted was called in question. The Circuit Court of Rhode
Island decided that the lawful and effective government of Rhode Island at the material time was the
Charter Government, which had ruled the Island since 1663; and therefore that the defendant was
justified in the measure which he took in suppressing the insurrection by the government established by
the voluntary convention of 1841. The plaintiff’s action therefore failed.
On appeal by way of error to the Supreme Court of the United States of America, after an exhaustive
review of the facts, the judgment of the Circuit Court was affirmed in these words:
“The question relates, altogether, to the constitution and laws of that State; and the well settled rule in this
court is, that the courts of the United States adopt and follow the decisions of the State Courts in questions
which concern merely the constitution and laws of that State.
Upon the whole, we see no reason for disturbing the judgment of the Circuit Court and we must therefore
regard the Charter Government as the lawful and established government of the Island during the time of this
contest.”
It is true of course that before arriving at that decision, the Supreme Court pointed out that “the
Constitution of the United States treated the subject (i.e. the question whether or not a majority of those
persons entitled to suffrage voted to adopt a constitution cannot be settled in a judicial proceeding) as
political in nature and placed the power of recognising a State Government in the hands of the Congress.
Under the existing legislation of Congress, the exercise of this power by courts would be entirely
inconsistent with that legislation”.
In its strictures, the Supreme Court, quite properly, refused to be drawn into political questions in
regard to the issue of suffrage and the number of votes. It observed finally that grave consequences
would result if it were to reverse the decision of the Circuit Court by holding that the Charter
Government which
Page 533 of [1966] 1 EA 514 (HCU)
had governed the Island since 1663 was not the legitimate government of the island. It also pointed out,
in what one may not be far wrong to describe with respect as counsels of perfection, that it was
undesirable for Courts to embark on enquiries bordering on the political.
We are of opinion that however useful and instructive the observations of the Supreme Court on the
several matters discussed in that case may be, the learned Attorney General was in error in relying on it
as supporting the proposition that the issue as to the validity of the Constitution of 1966 was purely a
political matter outside the scope of the jurisdiction of this Court.
In any case Luther v. Borden (7) is distinguishable from, and is irrelevant to, the circumstances of the
instant case. In the first place in Luther v. Borden (7) there was a contest between two competing groups
as to which should control the government of Rhode Island. There is no such contest in Uganda. The
Government of Uganda is well established and has no rival. The question that was raised by the court
was not as to the legality of the Government but as to the validity of the Constitution.
In the second place Luther v. Borden (7) raised all sorts of political questions, including the right to
vote and the qualification of such voters. There were two rival governors appointed and the rivalry
between the two governments produced a situation which was tantamount to a state of civil war. In fact
insurrection had occurred and war was levied upon the State. There was also the question as to whether
the Government was republican or not, which is a political question reserved for the decision of the
Congress under the Constitution of the United States of America.
Then there is the recent case of Baker v. Carr (8) – which was an appeal from the decision of the
United States District Court for the Middle District of Tennessee to the Supreme Court of the United
States.
There the appellants were persons allegedly qualified to vote for the Members of the General
Assembly of Tennessee representing the Counties in which they resided. They brought a suit in a Federal
District Court in Tennessee under 42 U.S.C. paras. 1983 and 1988 on behalf of themselves and others
similarly situated, to redress the alleged deprivation of their federal constitutional rights by legislation
classifying voters with respect to representation in the General Assembly.
They alleged that by means of a 1901 Statute of Tennessee, arbitrarily and capriciously apportioning
the seats in the General Assembly among the State’s 95 counties and a failure to reapportion them
subsequently notwithstanding substantial growth and redistribution of the State’s population, they
suffered a “debasement of their votes” and were thereby denied the equal protection of the laws
guaranteed them by the Fourteenth Amendment.
They sought, inter alia, a declaratory judgment that the 1901 Statute was unconstitutional and an
injunction restraining certain state officers from conducting any further elections under it. The District
Court dismissed the complaint on the grounds that it lacked jurisdiction of the subject-matter, and that no
claim was stated upon which relief could be granted, because the claim as presented raised a “question of
the distribution of the political strength for legislative purpose”. For, to quote the conclusion reached by
the Court, “from a review of (numerous Supreme Courts) decisions there can be no doubt that the federal
rule as enunicated and applied by the Supreme Court, is that the federal courts, whether from a lack of
jurisdiction or from the appropriateness of the subject-matter for judicial consideration, will not intervene
in cases of this type to compel legislative reapportionment”.
On appeal to the Supreme Court, in the judgment of the Court delivered by Brennan, J., it was held:
Page 534 of [1966] 1 EA 514 (HCU)
(1) that the District Court had jurisdiction to entertain the claim because the complaint asserted in the suit
was the subject-matter of the federal constitutional claim;
(2) that the appellants had standing to maintain the suit; and
(3) That the complaint’s allegations of a denial of equal protection presented a justiciable constitutional
cause of action upon which the appellants were entitled to a trial and decision.
The decision of the District Court was therefore reversed and the case was sent back for retrial.
In a concurring judgment, Clark, J., said:
“It is well for this court to practice self-restraint and discipline in constitutional adjudication, but never in its
history have those principles received sanction where the national rights of so many have been so clearly
infringed for so long a time. National respect for the courts is more enhanced through the forthright
enforcement of those rights rather than by rendering them nugatory through interposition of subterfuges. In
my view the ultimate decision today is the greatest tradition of this court.”
In his alternative submission, namely, that the 1966 Constitution is a valid constitution in law because it
came into existence as a result of a revolution or a coup d’etat, the learned Attorney General would
appear to be on a firm ground.
The learned Attorney-General urged the Court to hold that the incidents which finally culminated in
the promulgation of the 1966 Constitution had taken place abruptly. Most people were taken unawares.
What happened then was a coup d’etat. And coups d’etat are recognised in international law as a proper
and effective legal means of changing governments or constitutions in a country like Uganda, which is
politically and completely independent and sovereign. In his attractive and impressive submission, the
learned Attorney-General contended that the four cardinal requirements in international law to give the
1966 Constitution and Government of Uganda validity in law have clearly been fulfilled. These
requirements are:
1. T hat there must be an abrupt political change, i.e. a coup d’etat or a revolution.
2. T hat change must not have been within the contemplation of an existing Constitution.
3. T he change must destroy the entire legal order except what is preserved; and
4. T he new Constitution and Government must be effective.
Developing his argument on these requirements, counsel submitted that the declaration by the Prime
Minister on February 22, 1966, annexure A; followed by the statement of February 24, 1966, in which
the 1962 Constitution was suspended; the seizure of all powers of government by the Prime Minister; the
setting up of the Security Council for Uganda; the forcible ejectment of the President and Head of State
and Commander-in-Chief from the State House, in consequence of which the latter ultimately fled the
country; the abolition of the 1962 Constitution, followed immediately by the promulgation of the 1966
Constitution by a resolution of the National Assembly; the removal from the 1966 Constitution of the
Order in Council by the authority of which the 1962 Constitution was established; the automatic
assumption of office by operation of law by the then Prime Minister as the Executive President of
Uganda with the power to appoint anyone Vice-President of Uganda; the abolition of appeals to the Privy
Council; the abolition of the federal system of government and the High Court of Buganda; and the
enfranchisement of the
Page 535 of [1966] 1 EA 514 (HCU)
people of Buganda who had been since 1962 disenfranchised – all these were not only abrupt but such
fundamental changes not within the contemplation of the 1962 Constitution and therefore revolutionary
in character. The end result was in law a revolution.
Counsel further contended that the 1966 Constitution was not only valid but legal, it being a
constitution adopted by the people’s representatives in a National Assembly for their people of Uganda;
that since its adoption the people have accepted it with acclamation, and have unanimously given
obedience to it as the best constitution for Uganda. And finally that by reason of the effectiveness of the
Constitution the machinery of government has been functioning smoothly ever since. All taxes have been
collected without resistance.
Counsel then referred the Court to Kelsen’s General Theory of Law and State (1961 Edn.) at pp. 117
to 118; and the Pakistan case of The State v. Dosso and Another (9), as his authorities for the submission
that the 1966 Constitution is legally valid and that the court should so hold.
These submissions are doubtless irresistible and unassailable. On the theory of law and state
propounded by the positivist school of jurisprudence represented by the famous Professor Kelsen, it is
beyond question, and we hold, that the series of events, which took place in Uganda from February 22 to
April, 1966, when the 1962 Constitution was abolished in the National Assembly and the 1966
Constitution adopted in its place, as a result of which the then Prime Minister was installed as Executive
President with power to appoint a Vice-President could not appropriately be described in law as a
revolution. These changes had occurred not in accordance with the principle of legitimacy. But
deliberately contrary to it. There were no pretentions on the part of the Prime Minister to follow the
procedure prescribed by the 1962 Constitution in particular for the removal of the President and the
Vice-President from office.
Power was seized by force from both the President and the Vice-President on the grounds mentioned
in the early part of this judgment. There were even charges, to use the word in its popular sense, of
treason having been committed by the then President.
The learned Attorney-General’s contention was that the seizure of power in the manner in which it
was done by the then Prime Minister was consistent with the principles of international law, although not
based on the principle of legitimacy. In support of this proposition the attention of the court was drawn to
the Kelsenian principles to be found in his General Theory of Law and State at various pages
commencing from p. 117. The various passages to which we were referred are headed (c) The Principle
of Legitimacy, (d) Change of the Basic Norm and (3) Birth and Death of the State as Legal Problems,
which we now reproduce hereunder.
(c) The Principle of Legitimacy, p. 117-118 and 220:
“The validity of legal norms may be limited in time, and it is important to notice that the end as well as the
beginning of this validity is determined only by the order to which they belong. They remain valid as long as
they have not been invalidated in the way in which the legal order itself determines. This is the principle of
legitimacy. This principle, however, holds only under certain conditions. It fails to hold in the case of a
revolution, this word understood in the most general sense, so that it also covers the so-called coup d’etat. A
revolution, in this wide sense, occurs whenever the legal order of a community is nullified and replaced by a
new order in an illegitimate way, that is, in a way not prescribed by the first order itself. It is in this context
irrelevant whether or not this replacement is effected through a violent uprising against those individuals who
so far have been the legitimate organs competent to create and amend the legal order. It is equally
Page 536 of [1966] 1 EA 514 (HCU)
irrelevant whether the replacement is effected through a movement emanating from the mass of the people, or
through the action from those in government positions. From a juristic point of view, the decisive criterion of
a revolution is that the order in force is overthrown and replaced by a new order in a way which the former
had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the
constitution and certain laws of paramount political significance, putting other norms in their place. A great
part of the old legal order ‘remains’ valid also within the frame of the new order. But the phrase ‘they remain
valid’ does not give adequate description of the phenomenon. It is only the contents of these norms that
remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in
the way the old constitution prescribed. That constitution is no longer in force; it is replaced by a new
constitution which is not the result of a constitutional alteration of the former. If laws which were introduced
under the old constitution ‘continue to be valid’ under the new constitution, it is possible only because the
validity has expressly or tacitly been vested in them by the new constitution. The phenomenon is a case of
reception (similar to the reception of Roman Law). The new order ‘received’, i.e. adopts norms from the old
order; this means that the new order gives validity to (puts into force) norms which have the same content as
norms of the old order. ‘Reception’ is an abbreviated procedure of law cretation. The laws which, in the
ordinary inaccurate parlance continue to be valid are, from a juristic viewpoint new laws whose import
coincides with that of the old laws. They are not identical with the old laws, because the reason for their
validity is different. The reason for their validity is the new, not the old, constitution, and between the two
continuity holds neither from the point of view of the one nor from that of the other. Thus it is never the
constitution merely but always the entire legal order that is changed by a revolution.
This shows that all norms of the old order have been deprived of their validity by a revolution and not
according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure.
No jurist would maintain that even after a successful revolution the old constitution and the laws based
thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by the old
order itself. Every jurist will presume that the old order – to which no political reality any longer corresponds
– has ceased to be valid, and that all norms, which are valid within the new order, receive their validity
exclusively from the new constitution. It follows that, from this juristic point of view the norms of the old
order can no longer be recognised as valid norms.”
(d) Change of the basic norm.
“It is just the phenomenon of revolution which clearly shows the significance of the basic norm. Suppose that
a group of individuals attempt to seize power by force, in order to remove the legitimate government in a
hitherto monarchic system, and to introduce a republican form of government. If they succeed, if the old order
ceases, and the new order begins to be efficacious, because the individuals whose behaviour the new order
regulates actually behave, by and large, in conformity with the new order, then this order is considered as a
valid order. It is now according to this new order that the actual behaviour of individuals is interpreted as
legal or illegal. But this means that a new basic norm is presupposed. It is no longer the norm according to
which the old monarchical system is valid, but a norm endowing the revolutionary government with legal
authority. If the revolutionaries fail, if the order they have tried to establish remains inefficacious, then, on the
other hand their undertaking is interpreted, not
Page 537 of [1966] 1 EA 514 (HCU)
as legal, a law-creating act, as the establishment of a constitution, but as an illegal act, as the crime of treason,
and this according to the old monarchic constitution and its specific basic norm.”
(3) Birth and Death of the State as Legal Problems: at p. 220.
“The problem as to the beginning and ending of the existence of a State is a legal problem only if we assume
that international law really embodies some such principle as indicated in the foregoing chapter. Even though
some authors advocate the opposite view, the whole problem, as usually formulated, has a specifically juristic
character. It amounts to the question: Under what circumstances does a national legal order begin or cease to
be valid? The answer, given by international law, is that a national legal order begins to be valid as soon as it
has become – on the whole – efficacious; and it ceases to be valid as soon as it loses this efficacy. The legal
order remains the same as long as its territorial sphere of validity remains essentially the same, even if the
order should be changed in another way than that prescribed by the Constitution, in the way of a revolution or
coup d’etat. A victorious revolution or a successful coup d’etat does not destroy the identity of the legal order
which it changes. The order established by revolution or coup d’etat has to be considered as a modification of
the old order, not as a new order, if this order is valid for the same territory. The government brought into
permanent power by a revolution or coup d’etat is, according to international law, the legitimate government
of the State, whose identity is not affected by these events. Hence, according to international law, victorious
revolutions or successful coups d’etat are to be interpreted as procedures by which a national legal order can
be changed. Both events are, viewed in the light of international law, law creating fact. Again injuria jus
oritur: and it is again the principle of effectiveness that is applied.”
The effect of these submissions and references to the Kelsenian principles quoted above on this aspect of
the case, is that the 1966 Constitution was the product of a revolution. Of that there can be no doubt. The
Constitution had extra legal origin and therefore created a new legal order. Although the product of a
revolution, the Constitution is none-the-less valid in law because in international law revolutions and
coups d’etat are the recognised methods of changing governments and constitutions in sovereign states.
For, in the language of James Bryce in his Studies in History and Jurisprudence, Vol. 2 (1904 Edn.) at p.
107:
“Knots which the law cannot untie may have to be cut by the sword.”
According to Salmond on Jurisprudence (11th Edn.) by Glanville Williams, at p. 101:
“Every constitution has an extra legal origin, the best illustration being the United States of America which in
open and forcible defiance of English law broke away from England and set up new states and constitution
the origin of which was not merely extra legal but was illegal.”
“Yet, so soon as those constitutions succeeded in obtaining de facto establishment in the rebellious colonies
they received recognition as legally valid from the courts of the colonies. Constitutional law followed hard
upon the heels of constitutional facts. Courts, legislatures and law had alike their origin in the constitution and
therefore the constitution cannot derive its origin from them. So also with every constitution that is altered by
way of illegal revolution. By what legal authority was the Bill of Rights 1686 passed, and by what legal title
did William III assume the crown?”
Page 538 of [1966] 1 EA 514 (HCU)
In The State v. Dosso and Another (9) on October 7, 1958, the then President of Pakistan, feeling himself
unable to cope with the problems of Pakistan, and to maintain peace and order, declared martial law by
proclamation throughout Pakistan; annulled the constitution of Pakistan of March 23, 1956; dismissed
the Central Cabinet as well as the Provincial Cabinets; dissolved both the National and Provincial
Assemblies; and appointed General Ayub Khan Commander-in-Chief of the Army, as the Chief Martial
Law Administrator.
Three days later the President promulgated the Laws (Continuance in Force) Order, the general effect
of which was the validation of laws, other than the annulled constitution, which were in force before the
proclamation, and restoration of the jurisdiction of all courts including the Supreme Court and the High
Courts.
It was also directed in the order that thereafter the country was to be known as Pakistan and not the
Islamic Republic of Pakistan. The order also declared all orders and judgments made or given by the
Supreme Court between the proclamation and the promulgation of the Order to be valid and binding but
saving such orders, no writ or order for a writ issued or made after the proclamation was to have effect,
unless it was provided for in that Order, and all applications and proceedings in respect of any writ not so
provided for were to abate forthwith.
There were four appeals brought before the Supreme Court, and they involved the question whether
the writs issued by the High Court in respect of orders of release to a Council of Elders, or convictions
under s. 11 of the Frontier Crimes Regulations 1901, on the ground of repugnancy to art. 5 of the
Constitution of 1956 had abated by reason of cl. 7, art. 2 of the Laws (Continuance in Force) Order. The
court was to determine the effect of the proclamation and the Order on the writ jurisdiction of the High
Court including pending applications for writs and writs already issued which were subject of appeals in
the Supreme Court.
It was held by the majority of the court, Muhammad Munir, C.J. (Shahabaddin and Amiruddin
Ahmad, JJ.) that the President’s proclamation of October 7, 1958, by which the constitution of 1956 was
annulled and martial law was proclaimed constituted an “abrupt political change”, not within the
contemplation of the said constitution, i.e. a revolution. A victorious revolution is an internationally
recognised legal method of changing a constitution.
Such a revolution constitutes a new law creating organ, by virtue of having become a basic law
creating fact.
Laws which derive from the “old order” may remain valid under the “new order” “only because
validity has expressly or tacitly been vested in them by the new constitution”; “and it is only the contents
of these norms that remain the same, not the reason of the validity”.
Further “no jurist would maintain that even after a successful revolution, the old constitution and the
laws based thereupon remain in force, on the ground that they have not been nullified in a manner
anticipated by the old order itself.
It was also held that the Laws (Continuance in Force) Order was a new legal order, and that it was, in
accordance with that order that the validity of laws and the correctness of judicial decisions had to be
determined.
On the point of the survival of the fundamental rights, it was held unanimously that they were no
longer a part of the new legal order, as the constitution of 1956 had been expressly excluded from the list
of laws in art. 4 of that Order which were continued in force by the new regime; and, moreover, the
President had assumed full power to make adaptations in any such laws, thus overriding the prohibitions
contained in art. 4 of the Constitution of 1956, against laws contravening the fundamental rights; and that
the appeals being pending proceedings
Page 539 of [1966] 1 EA 514 (HCU)
in relation to a writ sought on the ground that a fundamental right had been contravened, must abate
forthwith under art. 2 (7) of the Laws (Continuance in Force) Order.
Applying the Kelsenian principles, which incidentally form the basis of the judgment of the Supreme
Court of Pakistan in the above case, our deliberate and considered view is that the 1966 Constitution is a
legally valid constitution and the supreme law of Uganda; and that the 1962 Constitution having been
abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of
the Laws of Uganda, it having been deprived of its de facto and de jure validity. The 1966 Constitution,
we hold, is a new legal order and has been effective since April 14, 1966, when it first came into force.
We have before us a large number of affidavits sworn to by a large number of officials, the purpose of
which is to prove to the satisfaction of the court that the new Constitution is efficacious and that it has
been accepted by the people since it came into force in April, 1966. However, we need only mention
eight of these affidavits, which we consider of considerable importance, as we are of the opinion that it
was unnecessary to file such a large number of affidavits merely for the purpose of establishing that the
new 1966 Constitution has been accepted without opposition and that since its inception the machinery
of government has been functioning smoothly. The affidavits which we would like to mention are those
sworn to by Mr. Francis Kalemera Kalimuzo, the Secretary, Cabinet, since 1962; Godfrey Lukongwa
Binaisa, Esq., the learned Attorney-General, since 1962; Mr. Erenayo Wilson Oryema, Inspector General
of Police, since 1964; Mr. Valerian Assa Ovonji, Permanent Secretary of the Ministry of Public Service;
Mr. David Oyite Ojok, Deputy Assistant Adjutant and Quartermaster-General of the Uganda Armed
Forces including the Uganda Air Force; Mr. Wilson Okumu Lutara, Permanent Secretary, Ministry of
Defence; Mr. Zerubaberi Hosea Kwamya Bigirwenkya, Permanent Secretary, Ministry of Foreign
Affairs; and Mr. Alfred Mubanda, Permanent Secretary, Ministry of Regional Administrations.
After a perusal of these affidavits, the contents of which have not been in any way challenged or
contradicted, we are satisfied and find as a fact that the new Constitution has been accepted by the people
of Uganda and that it has been firmly established throughout the country, the changes introduced therein
having been implemented without opposition, as there is not before us any evidence to the contrary.
We would however like to refer in particular to the affidavit sworn to by Mr. Bigirwenkya, Permanent
Secretary, Ministry of Foreign Affairs, the substance of which is that ever since the coming into force of
the new Constitution and the installation of the new Executive President and the new Government
recognition has been accorded to the new Government by all foreign countries with which Uganda deals.
We would like to point out that Uganda, being a well-established independent state, the question of its
recognition since the installation of the new Head of State by other nations is of considerable importance.
As was said by L. Oppenheim in his Treatise on International Law (8th Edn.), Vol. I, at p. 129:
“Recognition of a new State must not be confused with recognition of a new head of government of an old
State. Recognition of the change in the headship of a State, or in the form of its government, or a change in
the title of an old State, are matters of importance. But the granting or refusing of this recognition has nothing
to do with the recognition of the State itself. If a foreign State refuses to recognise a new head or a change in
the form of the government of an old state the latter does not thereby lose its recognition as an international
personality, although no official intercourse is henceforth
Page 540 of [1966] 1 EA 514 (HCU)
possible between the two States as long as recognition is not given either expressly or tacitly. If recognition of
a new title of an old State is refused, the only consequence is that the latter cannot claim any privileges
connected with the new title.”
We would like to emphasise, however, that the question of the recognition of the new Head of State of
Uganda by foreign nations is not strictly within the scope of this enquiry. For, in our view it is not within
the province of this court, nor is it within its competence to accord recognition to the government or
international status of the government of this country which is our own country. Courts, legislatures and
the law derive their origins from the constitution, and therefore the constitution cannot derive its origin
from them, because there can be no law unless there is already a state whose law it is, and there can be no
state without a constitution.
We now return to consider the second question of this reference, namely:
“Whether the Emergency Powers Act, 1963, and the Emergency Powers (Detention) Regulations 1966, or any
material part thereof are ultra vires the Constitution to the extent that the Act and the Regulations enable the
President to take measures or authorise the taking of measures that may not be reasonably justifiable for the
purpose of dealing with the situation that exists during the period when a declaration of a state of public
emergency is in force within the meaning of art. 30 (5) of the Constitution.”
Counsel for the applicant in presenting the case of the applicant prefaced his submissions with quoting
the provisions of art. 1 of the Constitution which declares the Constitution “to be the supreme law of
Uganda”. He pointed out that any law which was inconsistent therewith must be declared void to the
extent of such inconsistency. He drew the attention of the court to art. 30 (5) of the Constitution, the
provisions of which are in the following terms:
“30(5) Nothing contained in or done under the authority of an Act of Parliament shall be held to be
inconsistent with or in contravention of arts. 19, 24 or 29 of this Constitution to the extent that the Act
authorised the taking, during any period when Uganda is at war or any period when a declaration of a
state of public emergency under this article is in force of measures that are reasonably justifiable for
the purpose of dealing with the situation that exists during that period.”
Counsel submitted that the important words in the clause are “reasonably justifiable”; and that the words
reasonably justifiable are the key words in the clause and may be described as words of limitation,
limiting the type of measures that may be authorised by Parliament to be taken in dealing with a state of
public emergency; that it was within the power of this court to examine such measures authorised by
Parliament in order to see whether they were reasonably justifiable in the present state of emergency in
Uganda; that any Act of Parliament which authorised measures not reasonably justifiable must be held by
the court to be ultra vires art. 30 (5) of the Constitution; and that in examining such measures the court
must apply an objective test.
Counsel then referred the court to the provisions of s. 3(1)(2) (a) of the Emergency Powers Act (Cap.
307), and reg. 1 of the Emergency Powers (Detention) Regulations 1966, Statutory Instrument No. 65 of
1966, and contended that they were ultra vires art. 30(5) of the Constitution in that under the Emergency
Powers Act the Minister is made the sole judge as to whether or not the measures taken by him are
reasonably justifiable; and that under reg. 1 the Minister alone is to be satisfied.
Page 541 of [1966] 1 EA 514 (HCU)
The relevant sections of the Emergency Powers Act 1963 and of the Emergency Powers (Detention)
Regulations 1966 the subject-matter of this complaint are as hereunder set forth:
“3.(1) Whenever an emergency proclamation is in force, the President may make such regulations as appear
to him to be necessary or expedient for securing the public safety, the defence of Uganda, the
maintenance of public order and the suppression of mutiny, rebellion and riot, and for maintaining
supplies and services essential to the life of the community.
(2) Without prejudice to the generality of the powers conferred by sub-section (1) of this Section,
emergency regulations may so far as appears to the President to be necessary or expedient for any of
the purposes mentioned in that subsection:
( a) m ake provision for the detention of persons or the restriction of their movements, and for the
deportation and exclusion from Uganda of persons who are not citizens of Uganda.”
Regulation 1 (1) of the Emergency Powers (Detention) Regulations 1966 made pursuant s. 3 of the
Emergency Powers Act reads as follows:
“1.(1) Whenever the Minister is satisfied that for the purpose of maintaining public order it is necessary to
exercise control over any person, the Minister may make an order against such person directing that he
be detained, and thereupon such person shall be arrested and detained.
(2) At any time after a detention order has been made against any person under this Regulation, the
Minister may revoke or vary the order; or may direct that the operation of the order be suspended
subject to such condition:
( a) . . .
( b) . . .
( c) . . .
( d) . . .
( e) . . .
as the Minister thinks fit, and the Minister may revoke or vary any such direction whenever he thinks fit.”
Counsel submitted that since Uganda is governed under a written Constitution the National Assembly is
not as supreme a legislature as the United Kingdom Parliament; that the power of the National Assembly
is well defined in the Constitution of Uganda; and that the power which the National Assembly could
confer on a Minister is equally restricted, as it is subject to the rule of inconsistency with the
Constitution. That being so, the power which the National Assembly could confer on a Minister is not
comparable to the power which Parliament in the United Kingdom could confer on Ministers or, in
particular, on the Home Secretary under the Defence Regulations.
Counsel for the applicant then contended that the powers given to the Minister of Internal Affairs by
the Parliament of Uganda under s. 3(1) of the Emergency Powers Act 1963, as well as those conferred on
him under reg. 1 of the Emergency Powers (Detention) Regulations 1966, are too wide. They are not
subject to any condition or limitation. In particular under reg. 1 of the Emergency Powers (Detention)
Regulations, Counsel submitted, the only person to be satisfied before invoking these powers is the
Minister of Internal Affairs. In his contention therefore the Emergency Powers Act 1963 and the
Emergency Powers (Detention) Regulations 1966 by giving such unfettered powers to the Minister of
Internal
Page 542 of [1966] 1 EA 514 (HCU)
Affairs were ultra vires art. 30 (5) of the Constitution and that they should be so declared by the Court.
The learned Attorney-General, in his submission contended that, while he agreed that the powers of
the Parliament of Uganda were controlled and regulated by the Constitution of Uganda and that the
Emergency Powers Act 1963 and the Emergency Powers (Detention) Regulations 1966 made thereunder
must be considered in the light of the provisions of art. 30 (5) of the Constitution, the burden was upon
the counsel for the applicant to show the respect in, and the extent to which the Act and the Regulations
are said to be ultra vires art. 30 (5) of the Constitution, and that counsel has failed to discharge that
burden.
On the authorities of King v. Halliday (10); Liversidge v. Anderson and Another (11); R. v. Home
Secretary, Ex parte Greene (12), and R. v. Metropolitan Police Commissioner, Ex parte Hammond (13),
Counsel submitted that no government would embark on proclaiming a state of emergency unless the
situation was really grave and warranted it, and that in the grave situation which had developed in this
country Parliament was competent to give to the Minister of Internal Affairs discretion in the exercise of
his most difficult office of maintaining law and order.
We may at the risk of repetition here recapitulate the events already described by us in the early part
of this judgment in connection with the declaration of a state of emergency. A state of public emergency
was declared on May 23, 1966, and approved on May 25, 1966, by the National Assembly. A number of
Emergency Powers Regulations, including the Emergency Powers (Detention) Regulations, the
subject-matter of this complaint, which were made by the Minister of Internal Affairs in virtue of the
powers vested in him by the Transfer of Powers and Duties (No. 2) Order 1965, Statutory Instrument No.
91 of 1965, were all approved and affirmed by a resolution of the National Assembly in due compliance
with the provisions of s. 5 of the Emergency Powers Act 1963 on May 25, 1966. That resolution was
moved by the Minister of Internal Affairs. The regulations were immediately brought into force (see
annexure I, p. 52 – official report of the proceedings of the National Assembly).
It is noteworthy that these regulations were debated and passed by the National Assembly, the
membership of which is in the neighbourhood of over eighty. It is difficult to see how this court can, by
the application of an objective test, which is an operation in the abstract, hold that the powers which over
eighty citizens of Uganda, Members of Parliament had considered reasonably justifiable to be granted to
the Minister to enable him to deal with a serious situation in the country, was not reasonably justifiable
in the existing situation.
The Minister concerned is responsible to Parliament for his conduct and therefore not free from
control. His activities are subject to constant check by Members of Parliament. Indeed his task is an
invidious one for the burden of his responsibility is great.
Now counsel for the applicant has requested this court to apply an objective test in the interpretation
of the words “measures that are reasonably justifiable”, and that it is the duty of this court to interpret
the phrase within the context of the Constitution.
We must confess that it was difficult to appreciate counsel’s submission that the test to be applied
must be an objective one. Indeed to apply an objective test to the interpretation of the phrase “reasonably
justifiable” would be tantamount to importing into the provisions of the Constitution what was never
intended; and that might do untold damage to the provisions as a whole. A careful examination of the
whole of the provisions of art. 30 (5), which incidentally must be read as a whole, clearly shows that the
phrase “reasonably justifiable” is qualified by the sentence which follows it.
Page 543 of [1966] 1 EA 514 (HCU)
The Article provides that an Act of Parliament may authorise the taking during any period when
Uganda is at war or any period when a declaration of a state of public emergency is in force, of measures
that are reasonably justifiable for the purpose of dealing with the situation which exists during that
period. The test applicable therefore must be a subjective one. Such measures must be reasonably
justifiable for the purpose of dealing with the situation which exists at any particular time, and therefore
whatever measures are adopted must depend upon how grave the situation is at any given time.
We think it unsound for counsel for the applicant to complain that Parliament exceeded its powers by
passing or approving reg. 1 of the Emergency Powers (Detention) Regulations, which imposed on the
Minister of Internal Affairs the onerous duty of being personally satisfied before he could make an order
of detention against any person. We do not think that the performance of his duty and the exercise of his
discretion in the circumstances of the instant case can be the subject of a judicial review.
It was not clear whether counsel for the applicant would rather that every case of detention should go
to Parliament and that the Minister should only issue his order for the detention of a person concerned if
Parliament had debated the case and been satisfied that the prospective detainee should be detained. That
of course would be absurd; and would certainly defeat the whole object of the exercise as the Minister
has to act on secret information supplied to him from various sources. In any case such a practice would
be inconsistent with and would render the ministerial system of government a farce. It would give the
impression that a Minister could not be entrusted with responsibility and be expected to exercise his
discretion and satisfy his conscience before making an order so grave as that of detention.
As was said in Liversidge v. Anderson and Another (11), by Lord Macmillan ([1941] 3 All E.R. at p.
363):
“Is the standard of reasonableness which must be satisfied an impersonal standard independent of the
Secretary of State’s own mind, or is it the personal standard of what the Secretary of State himself deems
reasonable? Between these two readings there is a fundamental difference in legal effect. In the former case,
the reasonableness of the cause which the Secretary of State had for his belief may, if challenged, be
examined by a Court of Law in order to determine whether he had such cause of belief as would satisfy the
ordinary reasonable man, and, to enable the court to adjudicate upon this question, there must be disclosed to
it the facts and circumstances which the Secretary of State had before him in arriving at his belief. In the latter
case, it is for the Secretary of State alone to decide in the forum of his own conscience whether he has a
reasonable cause of belief, and he cannot, if he has acted in good faith, be called upon to disclose to anyone
the facts and circumstances which have induced his belief, or to satisfy anyone but himself that those facts and
circumstances constituted a reasonable cause of belief.”
These remarks, which are pertinent to the point under consideration raised by the counsel for the
applicant, were made by Lord Macmillan in the course of his judgment on the interpretation of certain
words contained in the Defence (General) Regulations, 1939, reg. 18b (1). By that regulation the
Secretary of State was empowered to make an order for the detention of any person if he has “reasonable
cause to believe any person to be of hostile origin or associations or to have been recently concerned in
acts prejudicial to the public safety, . . .”.
Having given careful consideration to the submissions of counsel, we are of opinion that the counsel
for the applicant has failed to satisfy us that the Emergency Powers Act, 1963 and the Emergency Powers
(Detention) Regulations
Page 544 of [1966] 1 EA 514 (HCU)
1966 in so far as they relate to the case under consideration are ultra vires art. 30 (5) of the Constitution
of Uganda. Our answer to the second question therefore is in the negative as we are satisfied that both the
Act and the Regulation are intra vires and in due conformity with the provisions of the Constitution.
It was contended by counsel for the applicant in respect of the third question of this reference,
namely:
“Whether any of the provisions of art. 31 (1) of the Constitution has been contravened in relation to the
applicant having regard to the affidavits filed herein by and on behalf of the applicant on the one hand, and on
behalf of the State on the other hand,”
that the provisions of arts. 31(1)(a), 31(1)(b) and 31(1)(c) were not complied with because respectively:
(1) the applicant was not furnished within five days of his detention with a statement in writing specifying
in detail the grounds for his detention as required by art. 31(1)(a) of the Constitution;
(2) the detention of the applicant was not published within fourteen days after the commencement of his
detention as required by art. 31(1)(b) of the Constitution; and
(3) the review of the applicant’s case was done by a tribunal not established by law; and that the
composition of the tribunal, apart from the Chairman appointed by the Chief Justice, were not
independent as required by art. 31(1)(c) of the Constitution.
In elaborating his contention on this point counsel referred the court to the affidavit filed by the applicant
details of which we have set out at the early part of this judgment. In that affidavit the applicant in
substance swore that he was rearrested after having been released on July 16, 1966, and detained at
Luzira Prison; that it was only on August 11, 1966, that a detention order was served on him together
with a piece of paper headed: “Statement required under s. 31(1)(a) of the Constitution of Uganda”. The
contents of the paper read as follows:
“You are hereby notified that on August 10, 1966, the Minister of Internal Affairs signed an order for your
detention under reg. 1 of the Emergency Powers (Detention) Regulations 1966.
The grounds on which you are being detained are that you are a person who has acted or is likely to act in a
manner prejudicial to the public safety and maintenance of public order.”
The affidavit of the applicant continued to the effect that the notification of his detention was only
published as General Notice No. 832 of 1966 in the Uganda Gazette on August 19, 1966; and that on
August 26, 1966, he appeared before a tribunal comprising the Honourable Mr. Justice Sheridan as
Chairman and Mr. Wanambwa and Mr. Inyoin as members.
The contention of counsel on this aspect of the case was that the only independent member of the
tribunal was Sheridan, J.; and that, although he did not entertain any doubt as to the impartiality of Mr.
Wanambwa and Mr. Inyoin, but because they are District Commissioners they could not be regarded as
independent; and that the presumption must be that they were not free from the influence of the
executive. It was also submitted by counsel that the tribunal had not been established by law.
We think that counsel for the applicant was under misapprehension in asserting that the detention of
the applicant commenced on July 16, 1966, when he was apprehended by the Police; and that the tribunal
for the review of the case of
Page 545 of [1966] 1 EA 514 (HCU)
the detainee was not properly established by law. Under reg. 3 of the Emergency Powers (Detention)
Regulations 1966 which, as already stated, was approved and affirmed by Parliament, the Police are
empowered to arrest and detain any person reasonably suspected to be a person who has acted, is about to
act or likely to act in a manner prejudicial to the public safety and maintenance of public order for a
period not exceeding twenty-eight days. Such detention is not a detention by the order of the Minister.
It may be that the Police in detaining such a person may do so for the purpose of making enquiries to
enable them to submit to the Minister a report for consideration as to whether a detention order should be
made. To constitute a detention under reg. 1 of the Emergency Powers (Detention) Regulations 1966 an
order signed by the Minister authorising such a detention must be served on the detainee; and it is after
such service that it could be said that the person was detained by the Minister in the exercise of his
powers under the Regulations; and it is only then that the time prescribed under the Constitution would
begin to run.
In the instant case therefore, on the affidavit of the applicant himself and of the Minister of Internal
Affairs, the applicant was detained only as from August 11, 1966, when he was served with the order of
detention signed by the Minister. It is clear that the statement with which he was furnished on August 11,
1966, was within the time prescribed under art. 31(1)(a) of the Constitution.
It should also be noted that the actual order of detention was issued by the Minister of Internal Affairs
on August 10, 1966; and that must be regarded as the day in which the Minister of Internal Affairs felt
satisfied that the applicant ought to be detained.
The tribunal was established by law under reg. 5 of the Emergency Powers (Detention) Regulations
1966. As already stated, those regulations were approved and affirmed by a resolution of Parliament on
May 25, 1966. The appointment of the members of the tribunal was gazetted on August 5, 1966, as
General Notice No. 776 of 1966. The applicant’s case was reviewed on August 26, 1966, by the tribunal,
that is to say, within a period of less than one month in terms of art. 31(1)(c) of the Constitution.
Although in his submission, counsel for the applicant was at pains to impress upon the court that there
was no imputation of partiality directed against the other two members of the tribunal, we regard with
disfavour the imputation that the other two members of the tribunal were not independent of executive
influence. There was not a shred of evidence produced before us in support of such a serious allegation.
One would have thought that the two men concerned, who undoubtedly must have done well in the
public service of Uganda to have risen to the senior posts of District Commissioners, and who owed their
appointment to the Public Service Commission, ought to be regarded as men of integrity and high
reputation with independent minds. It would be wrong and unjustified to assume otherwise.
As the learned Attorney-General rightly pointed out in his submission, the question of impartiality and
independence are questions of fact. It is of some significance that the applicant did not depose in his
affidavit that the tribunal which reviewed his case was not independent and impartial.
We would however observe, not necessarily because of the complaint made by the counsel for the
applicant in the present case, that it is desirable wherever and whenever possible and practicable that the
Minister of Internal Affairs should consider replacing government administrative officers with
non-government employees as members of the tribunal. Such a change, we believe, would be all to the
good and might serve to place the membership of the tribunal like Caesar’s wife above suspicion.
Page 546 of [1966] 1 EA 514 (HCU)
We are not satisfied that the paper headed “Statement required under s. 31(1)(a) of the Constitution”
to which we have already referred, contains sufficient detail of the grounds for the detention of the
applicant. The statement appears to be in a stereotype form. The applicant was therefore justified in
complaining that the statement served on him on August 11, 1966, did not furnish him with sufficient
details of the reason for his detention.
From the point of view of this court, this is a very difficult question. It is not clear to us why art.
31(1)(a) of the Constitution should have required the Minister to furnish a detainee with a statement in
writing specifying in detail the grounds upon which he is detained. One wonders the extent to which the
Minister could go in the specification of the grounds for detaining a person. The Minister of Internal
Affairs, in virtue of his position, must of necessity obtain his information through secret and confidential
sources. It might not be in the interests of public security that such sources be disclosed.
However that may be, we think that under art. 31(1)(a) of the Constitution, it is the duty of the
Minister of Internal Affairs to supply the applicant with a statement in writing setting out the grounds
upon which his detention was ordered. We do not think that the mere specification of the grounds would
necessarily involve the disclosure of the source or sources of information. To that extent our decision on
this particular issue of the third question is that art. 31(1)(a) has not been satisfactorily complied with by
the Minister.
Insufficiency of the statement of the grounds of detention served on the applicant is a mere matter of
procedure. It is not a condition precedent but a condition subsequent. We hold therefore that it is not fatal
to the order of detention made by the Minister. It is curable because the High Court under art. 32(2) of
the Constitution has the power to give such directions as it may consider proper for the purpose of
enforcing or securing the enforcement of any of the provisions of arts. 17 to 29 inclusive, or cl. (1) of art.
31 of the Constitution.
Our answer on the third question of this reference is in the affirmative but only to the extent of our
observations that the statement furnished to the applicant was, in our view, not sufficient to enable him to
prepare his defence for the review of his case before the tribunal.
Our order, therefore, is that this matter be sent back to the judge, who had referred the same to us, to
dispose of it in accordance with our decision in so far as the issues of the interpretation of the
Constitution are concerned; and that before such disposal, the judge to direct that art. 31(1)(a) of the
Constitution be complied with by the Minister of Internal Affairs by serving the applicant with a
statement specifying in detail the grounds upon which he is under detention.
In concluding this judgment we would like to express our indebtedness to the learned
Attorney-General, who was good enough to make available to us all the relevant public papers and
proceedings concerning this case as well as photostat copies of the judgments of foreign cases, which are
not available in the library of this court. We also would like to express publicly our appreciation of the
assistance given to us by both counsel in this difficult case. Both sides had fought the case with
outstanding ability.
Matter referred back for disposal in accordance with the court’s interpretation of the Constitution;
direction that a statement of grounds of detention be supplied.
For the applicant:
Abu Mayanja & Co., Kampala