Uganda v Commissioner of Prisons, ex parte Matovu

• Jurisdiction: Uganda
• Date: 02 February 1967
• Court: High Court (Uganda)

Uganda, High Court, Kampala.

(Sir Udo Udoma C.J.; Sheridan and Jeffreys Jones JJ.)

Uganda

and

Commissioner of Prisons, Ex parte Matovu.

INTERNATIONAL LAW IN GENERAL

International law Relation to municipal law International requirements for validity of Constitution and Government of sovereign State Revolution and coup d'tat Principle of effectiveness Application of criteria of International law by municipal court Validity of 1966 Constitution of Uganda The law of Uganda.

States as international persons Sovereignty and independence In foreign relations Relevance of international law requirements of validity to internal constitutional changes Revolution Validity of 1966 Constitution of Uganda The law of Uganda.

States as international persons Recognition Of Governments Revolution International law requirements of validity of constitutional change Validity of 1966 Constitution of Uganda Relevance of affidavit by official of Ministry of Foreign Affairs of Uganda that recognition had been accorded the revolutionary Government by other States Competence of courts to accord recognition The law of Uganda.

Summary: The facts.In 1962 the Constitution of Uganda was promulgated under the authority of the Uganda (Independence) Order in Council, 1962. This Constitution created the offices of President and Vice-President of Uganda, and vested the President with executive authority, including the power to appoint a Prime Minister and to appoint other ministers on the advice of the Prime Minister. It was also provided that the Parliament of Uganda should consist of the President and the National Assembly and that the President and the Vice-President might be removed from office by a resolution passed by the votes of not less than two-thirds of all the members of the National Assembly. On 22 February 1966 the then Prime Minister of Uganda issued a statement declaring that in the interest of national stability and public security and tranquility he had on that day taken over all powers of the Government of Uganda. He called upon judges, magistrates, civil servants, members of the security forces and the general public to carry on with their normal duties. On 24 February 1966 the Prime Minister issued a further statement which contained, inter alia, the declaration that the Constitution would be suspended temporarily with effect from that date, while preserving, inter alia, the Courts, Judges and Magistrates and the National Assembly. On 25 February 1966 a Security Council was established, of which the Prime Minister was Chairman. On 2 March 1966 the Prime Minister made a further statement declaring that the executive authority of Uganda would vest in the Prime Minister, and the duties, powers and other functions performed or exercisable by the President or Vice-President before 22 February 1966 would vest in the Prime Minister. The President was then forcibly ejected from his official residence, and subsequently fled abroad. On 5 March 1966 the Prime Minister issued a further statement referring, inter alia, to a press report that the President of Uganda (Sir Edward Mutesa) had admitted making a request, unknown to the Prime Minister and other cabinet ministers, for military assistance from abroad in response to rumours that troops were being trained in Uganda for the purpose of overthrowing the Constitution. On 15 April 1966, at an emergency meeting of the National Assembly, a resolution proposed by the Prime Minister was passed, purporting to abolish the 1962 Constitution and to adopt a new Constitution. Oaths under the new Constitution were subsequently administered to the Prime Minister (who became President, Head of State and Commander in Chief) and to members of the National Assembly, as a condition of their taking their seats in the Constituent Assembly established by the new Constitution.

On 22 May 1966 the applicant (Matovu, who was the Saza Chief Pokino, of Buddu, Buganda) was arrested and detained under the Deportation Act. On 23 May 1966 a state of emergency was proclaimed to exist in Buganda Kingdom. This proclamation was affirmed on 25 May by the National Assembly, and the Emergency Powers Act and detention regulations made in pursuance of it were brought into operation. On 16 July 1966 Matovu was released and immediately re-arrested. On 10 August 1966 the Minister of Internal Affairs ordered Matovu's detention under the Emergency Powers (Detention) Regulations, 1966; this detention was gazetted on 19 August. On 26 August 1966 Matovu appeared for review of his case before a tribunal established in pursuance of the new Constitution. On 30 August an application for a writ of habeas corpus was made before a single Judge, who subsequently referred it to a Court of three Judges of the High Court, in view of the important constitutional questions involved, it being contended that the detention was ultra vires the 1966 Constitution.

During the proceedings the Court raised the question of the legal validity of the 1966 Constitution. In response, the Attorney-General contended, inter alia, that the Court was precluded from enquiring into the legal validity of the Constitution by reason of the judges' judicial oath, that 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; alternatively, the Court should declare the 1966 Constitution valid, because the 1966 Constitution was the product of a successful revolution. Affidavits of public officials were presented as evidence of the effectiveness of the Government and the 1966 Constitution. The Attorney-General contended that the incidents culminating in the promulgation of the 1966 Constitution constituted a coup d'tat, and that this was a proper and effective legal means, recognized in international law, of changing the Government or the Constitution of an independent sovereign State. He contended that there were four cardinal requirements in international law to give the 1966 Constitution and the Government of Uganda validity in law: (1) there must be an abrupt political change (coup d'tat or revolution); (2) this change must not have been within the contemplation of an existing Constitution; (3) the change must destroy the entire legal order except what is preserved; (4) the new Constitution and Government must be effective. It was submitted that the events of 1966 fulfilled these requirements. Reference was made to Kelsen's General Theory of Law and State, pp. 117118, and the Pakistan case of The State v. Dosso and Another.1

Held (inter alia): that the 1966 Constitution was a legally valid Constitution and the supreme law of Uganda; that the 1962 Constitution having been abolished as a result of a victorious revolution in law, it no longer existed nor formed part of the laws of Uganda, having been deprived of its de facto and de jure validity; and that the 1966 Constitution was a new legal order and had been effective from the date of its coming into force (15 April 1966). The Court found, on the basis of the affidavits presented, that the new Constitution had been accepted by the people of Uganda, that it had been firmly established throughout the country, and that the changes introduced by it had been implemented without opposition. The Court applied the principles set out by Kelsen (in the book cited above) and which had formed the basis of the decision of the Supreme Court of Pakistan in The State v. Dosso (cited above). The Court attached particular importance to an affidavit of the

Permanent Secretary, Ministry of Foreign Affairs, to the effect that, since the coming into force of the new Constitution and the installation of the new Executive President and the new Government, recognition had been accorded to the new Government by all foreign countries with which Uganda dealt. The Court emphasized, however, that the question of recognition was not strictly within the scope of its enquiry, since it was not within the competence of the Court to accord recognition to the Government or international status of the Government of its own State. The Court further held that the detention of Matovu was not ultra vires the 1966 Constitution, although certain procedural requirements had not been complied with

The Court directed that the matter be sent back to the Judge who had referred the case, to dispose of in accordance with its decision as to the issues of constitutional interpretation, and to direct that the procedural requirements be complied with.

The following is the judgment of the Court:

Judgment ofSir Udo Udoma C.J. and Jeffreys Jones J.

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 subjudiciendum 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 caseGrace Stuart Ibingira and Four Others v. Uganda Cr. App. No. 173 of...