Constitution allows filing presidential petition out of time

Article 104 of the 1995 Constitution provides that a presidential petition ‘shall be lodged in the Supreme Court registry within 15 days after the declaration of the election results.’ 
Article 104(2) uses the word ‘shall’, which means that the petition must be lodged within 15 days. The question is whether there are exceptions to the 15-day deadline? 
This is an issue that the Constitution does not address.

 However, its answer is found in the drafting history of Article 104. The verbatim proceedings of the Constituent Assembly (CA) show that the draft constitution provided that a presidential petition had to be filed within three days after the declaration of the results. However, some members, for example, Mr Augustine Ruzindana, argued that it should be increased to seven days (page 3309 of the Constituent Assembly (CA) proceedings). 
In support of this amendment, Mr Owiny Dollo suggested that a petitioner had to be given ‘more time for him to collect from every quarter or the country his reasons for challenging the results of the presidential election.’ 

This view was supported by most of the delegates (apart from Mr C K Karusoke, who still insisted on three days). In response to Mr Karusoke’s argument, Mr Mugenyi asked the following question “imagine a situation where elections are declared on Thursday, then this voter is trying to gather evidence on Friday and Saturday and on Sunday the three days are over when the courts are not opening. Where would he… register his complaints?”  Mr Karusoke responded that “if it is a question of weekend where courts are not sitting, that is very understandable because the court will not be sitting but where the court is sitting, three days should be enough.” (page 3309). It was also agreed that the evidence needed to prove malpractices does not have to be submitted the day the petition is filed (Mr Joseph Mulenga and Mr Migadde).
 
When it was clear that almost all delegates agreed that the days should be extended from three to seven, Mr Bidandi Ssali put the following question to the chairman of the Constituent Assembly:
 “I would like to know whether it would make any sensible difference if we added the word ‘working days’ if we are talking in terms of - because I am imagining a situation where we are taking Saturday and Sunday. Should we continue taking it as part of the three days or part of the seven days?”  

In his response, the chairman argued that according to his understanding of law, “if a law requires a matter to be done and that doing of the matter falls on a Sunday or a public holiday, then the next working day is the day on which that matter shall be done. So the matter is normally taken care of” (Page 3314).
After the chairman’s answer, the matter was closed and delegates voted to increase the number of days from three to seven. An amendment was made later to increase the number of days to 10. In simple terms, not a single delegate objected to the fact that weekends and public holidays are not included in the specified days. 

However, this is only applicable should the last day on which the petition has to be filed falls on a weekend or public holiday. The Hansard shows that when Article 104 was amended in December 2017 to increase the number of days from 10 to 15, the issue of whether weekends and public holidays are counted for the purpose of filing a petition did not come up.  
The above debates show the intention of the drafters of the Constitution. Giving effect to their intention is the only correct way in which Article 104 should be interpreted or understood.

By Jamil D. Mujuzi
 

Mr Mujuzi is a professor of Law at the Faculty of Law, University of the Western Cape, South Africa. 
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