Constitutional court nullifies Narcotic Drugs law over quorum

The Constitutional court has nullified the Narcotic Drugs and Psychotropic Substances (Control) Act, 2015, which had criminalised the cultivation, distribution and exportation of miraa.

The court ruling follows a 2017 petition by the farmers growing miraa (khat) under their umbrella body Wakiso Miraa Growers and Dealers Association Limited who sought to overturn a parliamentary decision to ban the sale and use of miraa.

In their petition, the dealers contended that parliament was inconsistent with principles of legality, equality, rationality and proportionality guaranteed under the constitution since they were never consulted.

The farmers also contested the manner in which the law prohibited the cultivation, possession, consumption, sale, purchase, warehousing, distribution, transportation, exportation, importation and other dealings in the crop. They said this decision was not backed up by any evidence, scientific or otherwise.

Last week, a panel of five judges threw out the entire law on a technicality, ruling that the manner in which it was enacted was illegal and repealing it was the only remedy because of a requirement by the parliamentary rules of procedure of having quorum before any bill is passed. 

In the lead judgement, the judges stated that “Having resolved that the impugned Act is null and void, it becomes academic for this court to go ahead and answer the remaining issues whose gist is whether the specific sections and schedules of the same Act are unconstitutional or not”.

They also stated that “ [we] note from the petitioner’s prayers that she was interested in nullification of aspects of the impugned law, which relate to catha edulis (khat). The evidence before this court was that the said provisions of the impugned were not handled by parliament independent of the rest of the provisions of the Act. As such, there is nothing about the impugned Act that is to be saved”   

As a result, it was finally ruled that “In the premises, I would declare the Narcotic Drugs and Psychotropic Substances (Control) Act, 2015 null and void for lack of quorum on the part of parliament, contrary to articles 88 and 89 of the constitution and rule 23 of the rules of procedure of the 9th parliament, 2012 made, pursuant to articles 88 and 94 of the constitution,” said Muzamiru Mutangula Kibeedi, justice of the Constitutional court, in his lead judgement.

Other judges on the panel included deputy chief justice Richard Buteera, Stephen Musota, Irene Mulyagonja and Monica Mugyenyi. According to the ruling, at the stage of voting, any bill must receive a sufficient number of votes in order for it to be lawfully passed.

The sufficient number of votes consists of a majority of the quorum and any bill passed without this procedure being followed is null and void.

“I have already established that from the above evidence before this court, the speaker failed to ascertain the quorum as required by rule 23(3) of the rules of procedure of the 9th parliament, 2012. I have also made a finding that the evidence before court supported the petitioners’ claim that there was no quorum at the time of passing the bill for the enactment of the act,” Kibeedi ruled.

In repealing the entire act, Kibeedi ruled that since the provisions that banned dealing in miraa were not handled by parliament independent of the rest of the provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act, 2015, it was only prudent that the entire law is nullified.

The petitioners, called the development a big victory to miraa farmers noting that several research done show the drug is both food and medicine.