Attorney-General v Godfrey Katondwaki

• Jurisdiction: Uganda
• Date: 10 January 1963
• Court: High Court (Uganda)

Uganda, High Court

Attorney-General

and

Godfrey Katondwaki

States as international persons State succession In matters of administration: officials Validity after independence of appointment of Electoral Boundary Commissioner made during protectorate The law of Uganda

International law in general Relation to municipal law Necessity for incorporation, into municipal law Whether publication in Legal Supplement to Gazette constitutes incorporation British Crown's jurisdiction over protectorate Validity after independence of appointment of Electoral Boundary Commissioner during protectorate The law of Uganda

Summary: The facts.An agreement, which entered into force on 30 August 1962, was made between the Governor of what was at the time the Uganda Protectorate for and on behalf of Her Majesty the Queen, of the one part, and the Omugabe of Ankole on behalf of the Eishengyero (i.e. Legislative Assembly) and People of the United Kingdom of Ankole, of the other part (the Ankole Agreement). The Agreement was intended to subsist until, and only until, the end of the state of protection then existing. The third schedule of the Agreement set out a Constitution of Ankole, paragraphs 18 and 19 of which provided for an Eishengyero, and provided that the Omugabe should appoint an Electoral Boundary Commissioner to determine the manner in which Ankole should be divided into constituencies.

On 6 October 1962 the Omugabe appointed Godfrey Katondwaki (the defendant) to be the Electoral Boundary Commissioner, pursuant to the Ankole Agreement. Prior to this appointment the Omugabe notified the Governor by letter that he was appointing the defendant to the office, and the Governor replied advising that the appointment should be deferred until the new Constitution of an independent Uganda came into force. On 8 October the defendant produced a report stating that he had demarcated the necessary constituencies. He continued to act as Electoral Boundary Commissioner until November 1962, and there was evidence that he had exercised the powers and performed the functions of his office so as to revise his report and to bring it more into conformity with provisions of the Ankole Agreement.

At midnight on 8 October the state of protection over Uganda came to an end, and immediately thereafter the provisions of the Constitution of Uganda, contained in a Schedule to the Uganda (Independence) Order in Council 1962, came into force. The Constitution contained provision for the appointment of an Electoral Boundary Commissioner for the Kingdom of Ankole.

By Section 4 of the earlier Constitution of Uganda1 the Governor had power to declare that any agreement between Her Majesty and the Ruler of the Kingdom of Ankole should have the force of law. Neither the Ankole Agreement, nor its predecessor concluded in 1901, had been the subject of a declaration under Section 4 of the earlier Constitution.

The plaintiff sued for declarations that the appointment of an Electoral Boundary Commissioner for the Kingdom of Ankole should be in accordance with the Uganda (Independence) Order in Council 1962 and that the defendant had no right or authority to exercise the powers or perform the duties of that office by virtue of the Ankole Agreement. The plaintiff claimed that the defendant's appointment had not been made under provisions having the force of law, and that even if it had been so made, it ceased to be of effect immediately prior to 9 October 1962 owing to the expiration of the Ankole Agreement. The defendant claimed to have been validly appointed, and that his appointment continued and was valid notwithstanding that the Ankole Agreement ceased to have effect on 9 October 1962. During the proceedings the status of the Ankole Agreement was raised.

Held: The declarations sought by the plaintiff should be granted. The Ankole Agreement was in the nature of a treaty and unless incorporated within the municipal law of Uganda its provisions did not confer rights or impose duties justiciable and enforceable by the Courts. It had not in fact been given the force of law in Uganda, and after independence the law applicable to the appointment in question was to be found in the Constitution of Uganda, with which the defendant's appointment was not in accordance.

Sheridan, J. A., read the following judgment of the Court:

This suit, which was heard by three judges of the High Court in accordance with the provisions of the Civil Procedure (Constitutional Cases) Act 1962, is one in which the plaintiff, the Attorney-General of Uganda, sues the defendant, who claims to be the Electoral Boundary Commissioner for the Kingdom of Ankole, for:

• 1. a declaration that the Electoral Boundary Commissioner for the Kingdom of Ankole is to be appointed under paragraph 18

  of Schedule 2 to the Constitution of Uganda which was brought into force on 9 October 1962, by the Uganda (Independence) Order-in-Council 1962, and not otherwise;

• 2. a declaration that the defendant has no right or authority to exercise the powers or perform the duties of the Electoral Boundary Commissioner;

• 3. an injunction to restrain the defendant from exercising those powers or performing those functions.

By his defence, the defendant claims:

• 1. that he was validly appointed by the Omugabe on 6 October 1962;

• 2. that in accordance with those provisions he delimited the constituencies of the Kingdom of Ankole before the Ankole Agreement 1962, expired, immediately before 9 October 1962;

• 3. that his appointment continued to be valid after 9 October 1962, notwithstanding the expiry of the Ankole Agreement 1962, as it is not expressly stated in the constitution that it is intended to have a retrospective effect;

• 4. that paragraph 18 and...