Abstract

Article 137 of the Constitution of Uganda (the Constitution) provides for the jurisdiction of the Constitutional Court (the Court) to interpret the Constitution and to determine whether any law or conduct—act or omission—is contrary to the Constitution. The drafting history of art 137 shows that the court’s jurisdiction to interpret the Constitution is different from that of declaring whether any law or conduct is inconsistent with the Constitution. However, the jurisprudence of the Court shows that it has blurred the distinction between these two mandates. In this article, the author relies on the drafting history of art 137 to argue, inter alia, that the Court’s approach in this regard is debatable. It is also argued that, although the intention of the drafters of the Constitution was that the Court was not to be the first and final court in matters of constitutional interpretation, the literal interpretation of art 137 and the jurisprudence on art 137 show the opposite. It is further argued that in some instances the Court has misunderstood its jurisdiction under art 137(5) and (6) and that the Court does not have the power to declare legislation unconstitutional under art 137(5). It is also submitted that the Court’s argument that its jurisdiction is limited to interpreting the Constitution or that any petition before it cannot be resolved without first interpreting the Constitution is erroneous. It is further argued that Uganda may have to follow the South African model in which other courts, such as the High Court and the Supreme Court of Appeal, are also empowered to declare legislation unconstitutional.