20/U/22040/PSA 2000722040

MUTAKOOHA M. ABBA WILLIAM

L1210

PRINCIPLES OF CONSTITUTIONAL LAW II

STUDENT NUMBER: 2000722040

REGISTRATION NUMBER: 20/U/22040/PSA

NOT A RETAKE

5th Wednesday 2022

No: 5,2,9,1

No. 5 a)

According to the black’s law dictionary a citizen is a person who, by either birth or naturalization, is

a member of a political community, owing allegiance to the community and being entitled to enjoy all

its civil rights and protections; a member of the civil state, entitled to all its privileges. The third

schedule rules out natives.

Acquisition of citizenship by a person who’s community is not included the third schedule of the 1995

constitution can be done by;

Citizenship by Registration according to Section 14 of the Uganda Citizenship and Immigration

Control Act of 1999, the following persons upon application shall upon application be registered as

citizens of the Republic of Uganda, if they married to a citizen of Uganda for more than five years and

it is legally proven, a person who legally and voluntarily moved to Uganda and has been living here

for more than 20 years. The procedure for citizenship by registration is expounded on in Section 15 of

the citizenship act stating that the person must show interest by putting in writing an application,

renouncing any other nationality or citizenship he or she may possess, taking allegiance as specified

in the fourth schedule of the constitution, has made and registered a declaration of his or her

intentions

concerning residency.
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In Center for Public Interest Law Ltd Salima Namusobya v The Attorney General, the

petitioners sought the following declarations that when a refugee satisfies the requirements under the

laws of Uganda under article 12(2) should be able to apply for citizenship by registration and under

article 13 of the constitution apply for citizenship through naturalization. The petitioners sought an

order that all relevant government agencies and departments process applications for refugees who’ve

applied for citizenship by registration and naturalization as long as they satisfy the legal requirements.

However the petition was stopped dead in its tracks due to the absence of the respondent.

Under section 16 of the Uganda Citizenship and Immigration Control Act of 1999, citizenship by

naturalization is another way a person who is not provided for in the third schedule can acquire

citizenship. Under citizen by naturalization according to the act, the board may grant to an alien

citizenship through a certificate of naturalization after making an application as specified under this

section. The qualifications for naturalization are that this person must have lived in Uganda for a

period of 20 years, has resided in Uganda throughout the period of 24 months immediately after

applying. As well as know well the language being used.

According to article 14 of the constitution of the republic of Uganda Loss of citizenship by

registration can be met if a) a person voluntarily acquires citizenship of another country b) voluntary

service in the armed forces of a country which is hostile or at war with Uganda.

In the case of Shamima Begum, Shamima Begum who left the U.K for Syria to join the Islamic State

of Iran and Syria as a teenager was not allowed to return to the U.K to fight her citizenship case, and

with a unanimous ruling the supreme court said that her rights were not breached when she was

refused permission to return. Her joining the forces of a group hostile to the U.K was considered

treason and espionage.

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No. 5b)

Center for Public Law Ltd and Anor V. attorney General, Constitutional Petition Number 34 of

2010) In this case, the applicants sought the courts declaration that Article 12(2)(c) of the

Constitution confers citizenship by registration of refugees in Uganda where such refuges satisfy the

requirements under the provisions of section 15 of the Uganda Citizenship and Immigration

Control Act. They additionally, they sought courts declaration that that the relevant government

departments and or agencies process applications for citizenship by registration and or naturalization

by refugees who satisfy the requirements for citizenship under the relevant legislation and regulations.

On the first issue, court relied that on the rule of harmonization to resolve it, reasoning that one of the

cardinal rules of constitutional interpretation is that all provisions of the Constitution must be read

together, one provision not negating the other, especially provisions touching on the same subject. .

Court held that the Constitution has provided under article 13 for another mean for another path to

citizenship that people who do not qualify under either birth or registration can take. Article 12

creates a right in favour of certain categories of people who would be entitled to registration as

citizens of Uganda upon application. Court held that if one does not fall within the categories of

people expressed to be entitled to registration on application by the Constitution then one cannot

become a citizen by virtue of registration. In resolving the second issue under contention, court noted

that Article 137 (3) of the Constitution permits it to offer redress where it is appropriate. It however

declined to do so noting that there was a serious lack of evidence that any application for either

registration as a citizen or naturalization as a citizen of Uganda has ever been made and the same was

rejected or not processed by any government agency. Court relied on Legal Brains Trust (LBT)

Limited v The Attorney General of Uganda Appeal No. 4 of 2012 [East African Court of Justice

(Appellate Division)] they could not issue orders at large to bodies not identified and held that since

no Government Agency was named or cited, the government agencies were assumed to be doing their

role because of this and as such, they could not compel any agency to do anything.
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No. 2

The doctrine of the separation of powers was birthed so that all the organs do not seep into the

functions of the others. Overlooking the difference in duties of the executive, judiciary and legislature

they still work together to create a seamless government. Montesquieu in his idea of separation of

powers required a difference in staff and autonomy. Checks and balances are the pivot of this Greek

tragedy as the executive judiciary and legislature check the powers if each other restraining any one of

them from obtaining absolute power. In Paul K Ssemwogerere & Anor v. AG, a petition was

brought forth questioning the validity of the Referendum (Political Systems) Act, 2000 after being

passed with so many illegalities as to time frame stated in the constitution. Court held that the

referendum act was void, due to the absence of the assent of the president , a certificate from the

speaker ascertaining quorum contrary to article 88 of the constitution.

In comparison with the 1966, 1967 and the 1995 constitutions has provided for more demarcations to

create the doctrine of separation of powers. The constitution provides that there are three organs, i.e.

the executive, the legislature, and the judiciary. Article 99 - powers of executive, Article 77 -

establishes parliament, 79 - gives functions of parliament, Article 126 - establishes jurisdiction and

power and of the judiciary, and all exercise their powers independently. In the case of Attorney

General v. Maj General David Tinyenfuza (SCCA No.01 of 1997)

Justice, kanyeihamba after being appointed 2 weeks to the hearing and asked to recuse himself, had

the disccenting rulling where he held that, “……The Chief Executive of Uganda who is equally a

protector and implementer of the Constitution, albeit at different levels from those used by the Courts

of Law, should be allowed to breathe and think aloud about his or her responsibilities to the State and

Ugandans without having to be dragged to court every time. The President should be allowed to

investigate matters within the jurisdiction of the Presidency and should be allowed discretion in

combating insurgencies and rebellions as well to wage a war authorized by Parliament without

unnecessary interference from the Courts of Judicature… It would be bad law, in my opinion, if every

time the President of Uganda thought and proposed that a certain course of action should be

investigated; the President is immediately challenged in courts of law without further ado.”
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This case there by resurrected the ghost of Exparte Matovu, this re-ins tainting the political question

doctrine and the doctrine of separation of powers giving space to the commander to exercise his

power as provided article 98.

Similar to the Maj Gen. Tinyenfuza case, other cases in the Ugandan jurisdiction have upheld the

doctrine of separation of powers, i.e., in the case of Miria Matembe & Nobert Mao v. AG (2005)

that was challenging the passing of the bill of the of the term limits, before it was actually passed law,

the petitioners raised that their cause of action was the interpretation of the likely threat under article

50, court dismissed the case, as it was so immature and it interfered with the independence of the

legislature.

In Uganda Law Society V. AG (2006), where the petitioners challenged the rearrest of Dr. Kizza

Besigye by military officials after he was granted bail by the trial court. The petitioners wanted to

ascertain the standing of the court martial, and the court held that, That the acts of security agents at

the premises of the High Court on the 16 November, 2005 contravened Articles 23(1) (6); 128 (1) (2)

(3) of the Constitution i.e. the independence of the judiciary.

In regard to the autonomy of the judiciary, the case of Ismael Sserugo V. KCC & AG

(Constitutional Petition 14 of 1997) the constitutional court held that, “……….No proceedings shall

lie against the Government by virtue of this section in respect of anything done or omitted to be done

by any person while discharging or purporting to discharge any responsibilities of a judicial nature

vested in him, or any responsibilities which he has in connection with the execution of judicial

process.”

Thus instating the judicial independence, free from trial and interference of their constitutional duties.

In case of Male Mabirizi & Ors v AG (2018), the supreme discredited the Basic structure doctrine, a

theory that makes the judiciary a check to the toxic excess power of the legislature in amending the

law. The supreme court held that even when the basic structure doctrine was binding, it ought not to

break the doctrine of separation of powers and the discretion of the parliament to amend the law under

article 259.
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To contrast the Supreme Court over ruled the decision in CEHURD & Ben Twinomugisha V. AG

(Constitutional Petition 16 of 2011) where Justice Kikonyogo, had held that even when the national

objectives and direct principles of state policy were binding, the court couldn’t order the executive to

fulfill its obligation of provision of health services to women, as it would abuse the doctrine of

separation of powers, and the political question doctrine. A popular decision of the Supreme Court,

killed the Exparte Matovu ghost as it held that the political question doctrine was archaic and in a

democratic franchise we needed a system of checks and balances.

The doctrine of separation of powers is important to constitutionalism as it, promotes Public Policy,

Consultation, where before any piece of legislature is passed, a wide range of consultations usually

take place, Public Opinion and The prohibition of retrospective legislation provided for under article

92.

No. 9.

Human rights are the pivot of societies in Uganda. Human rights are illuminated in chapter 4 of the

1995 constitution. Chapter four unveils the basic and fundamental human rights . Among the rights

prescribed in that chapter is Article 37 Right to Culture and Similar rights. ‘Every person has a

right as applicable to belong to enjoy, practice, profess, maintain and promote any culture, cultural

institution, language, tradition, creed, or religion in community with others’ The National Objectives

and Directive Principles of State Policy also recognize the need to uphold cultural values and

practices. Article 29 there of also guarantees a person the right to associate. Nonetheless even when

the above is stated, the right to culture and association are not absolute rights that cannot be deviated

from. Article 37 is subject to Article 2(2) of the supreme law of the land which is the constitution and

32(2) that states that any culture, custom, law and traditions that may be against dignity, welfare or

interest of women or any other marginalized group within the society as prescribed in Article 32(1)

that seeks to undermine their status is prohibited by the constitution. Consequently, it helps us

acknowledge the fact that any custom or law which is inconsistent with the constitution and is against
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the principles of natural justice shall not be conformed with despite the fact that the citizens of this

country have been given freedom to belong to particular cultures and similar rights. If a custom is

deemed repugnant and inconsistent with the laws of the land it shall be declared null and void to the

extent of its inconsistency.

Uganda being a multi-cultural and multi-tribal state it to an extent applies customary law and also

tries to link it to its written laws and statutes. This explains why to some extent the republic of

Uganda applies customary law within its laws which can be evidenced in the Judicature act section

15 provides that the High court of Uganda will have the right to observe and enforce the observance

of the existing customs and no person shall be denied that right to benefit from an existing custom so

long as it is in conformity with the law and not repugnant to the rules of natural justice and equality.

For the above reasons it is important that Article 37 is closely read with Article 246 of the constitution

that provides for the institution of cultural and traditional leaders in light of when the courts of law

will need guidance on certain customs that may be brought before it by the courts of law by concerned

parties. In the case of Kyobe Julius Luseleka and others v Aida Namalwa where the katikiro of

Buganda was duly contacted and he assigned Kabaale Yusuf to attend court and give evidence

towards customs of a particular clan in Buganda known as the “Ndiga Clan” as he was deemed as a

competent party on matters of that particular clan. Therefore, we can attest that courts are very careful

when treading on matters of culture and will not just assume that they are well acquainted with the

different customs of the land.

It is trite to note that though these cultural rights have been respected within our nation in conformity

to Article 37 in the exercise of such a right, people must not infringe or interfere with the rights of

others. The most contention over these rights has been expressed tete-a-tete the rights of women and

children. In numerous circumstances, laws have been passed which expressly outlaw certain customs

that do not conform with the times we leave in, that are repugnant to natural justice, moral conscience,

and that are not inconformity with the constitution. In the case of Best Kemigisa v Mable

Komuntale, the repugnant practice of not allowing female widows to inherit their husband’s estate
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even in the light of such property being quite relevant in the welfare and livelihood of the deceased

children. In this case the Tooro Queen mother, Best Kemigisa, won a High Court case in which she

filed a plaint seeking an order for the annulment of a caveat that was placed on the estate of her late

husband Omukama Patrick Olimi Kboyo 111 by princess Mabel Komuntale. Court ruled in her favour

and called such a custom and practice of not allowing women to inherit property as repugnant and

marginalizing women and not promoting equality.

In Bruno Kiwuwa v Ivan Serunkuma & Juliet Namazzi civil suit number 52 of 2006 the plaintiff

challenged the marriage of the defendants, since they were both from the ‘Ndiga’ Baganda clan, and

cannot lawfully by reason of an obtaining custom, contract such as a marriage. The defendants argued

that the customary law that prohibited their marriage was not binding, since they had decided to get

married under the Church law. Court held that there was no reason why the custom in issue, can apply

to customary marriage and yet cannot apply to a marriage under the marriage act, whether under the

marriage act or the Customary Marriage (Registration) Act, the defendant remains of the same tribe

and same clan, the custom has to apply to both cases. Thus court instated declarations that the

intended marriage of the defendants was illegal, null and void, as it contravened the Buganda customs

that prohibited marriage between persons that belong to the same clan, also, before a marriage is

contracted, it is a Baganda custom that it is preceded by an introduction (Kwanjula) ceremony. Thus a

permanent injunction restraining the couple from getting married

Article 37 also recognizes the tension between the rights of people and the rights of the community. It

is not absolute that one should conform with all customs as their culture subscribes. The right to

associate Article 29 also includes right to disassociate. One has the right to also disassociate himself

or herself from certain Customs. The case that best highlights this right to disassociate is Kyobe

Julius Luseleka & 5 others v Aida Namalwa. In this case there was a contention between the

applicant and the respondent upon where their deceased relatives brother should be laid to rest. The

applicants sought to have their half-brother (deceased) buried at their ancestral home in

kakoola village where their late father had also been laid to rest in conformity with the customs

of the “Ndiga” clan. On the other hand, the respondent, the wife of the deceased who had lived with
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him in Switzerland, insisted that the deceased had confined in her that he wished to be buried at their

matrimonial home in Mukono. It is against such a background that this case was brought to the courts

of law. To better approach the matter court invited a witness a one Mr Kabaale Yusuf who was

deemed to be competent enough in matters of the “Ndiga” clan. When asked and cross examined to

confirm whether burying someone away from their ancestral home is not an abomination. He

hesitantly said that it was not an abomination to be buried away from their ancestral grounds. Though

he hastened to say that it would be good that the customs are followed. In Uganda there is no express

law that determines burial grounds for a person who dies intestate (without a will). However, laws

have been put in place to help courts on how to resolve such matters. The matter was reolved in

favour of the respondent taking into consideration the hierarchy of relationship held with the

deceased. This was backed up by section 201 of the Succession Act Cap 162 “when the deceased

has died intestate, those who are connected with the deceased either by marriage or

consanguinity are entitled to obtain letters of administration of his or her estate and effects of in

the order and according to the above provision” based on the above provision the law recognizes

the rights of the widower and widow as the most entitled persons to apply for letters of administration

of the deceased estate. Brothers and sisters will only come in where there is no widower or widow and

children or where Children are still minors. this case greatly exemplified that the right to cultural

association is not absolute and one has the option of disassociating him or herself from a custom if no

one’s rights are being violated.

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No. 1

ISSUES

1. Whether the CDDF has the power to summon parliament for an emergency session to debate

a bill?

2. Whether the creation of an offence under the Abusive Social and Other Media Prevention Act

and its punishments there under is in violation of the rights enshrined under chapter four of

the constitution?

3. Whether the CDDF has the power as daughter of the president to assume the president’s

powers under the constitution?

4. Whether the trial of the culprits by a military tribunal is in violation of the human rights

enshrined under chapter 4 of the constitution?

RESOLVED ISSUES

ISSUE 1

Under Chapter 4 of the constitution, Article 20 states that the fundamental rights and freedoms of the

individual are inherent and not granted by the state. This was further upheld by Justice Lugakingira

in the case of Christopher Mtikila v Attorney of Tanzania (1996)1 CHRLD II They inhere in a

person as reason of their birth. The rights enshrined are to be respected, upheld and promoted by the

organs and agencies of government and all persons. Under the impugned law, an offence called

“defamation of members of the first family” whose punishment is 10 years’ imprisonment, a fine and

deportation from one’s place of birth. Furthermore, the culprit is denied legal representation, the right

to bail, medical attention and denied the right to appeal. Upon perusal of the above facts, this is in

clear violation of the constitutional rights enshrined under Article 28, which guarantees the right to a

fair hearing. Article 28(d) guarantees the right to legal representation, which the impugned law above

restricts. Article 23(6) provides that where a person is arrested in respect of a criminal offence, the
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person is entitled to apply to the court to be released on bail and the court may grant that person bail

on such conditions the court considers reasonable. Article 23(2) provides that a person arrested,

restricted or detained shall be kept in a place authorised by law. Mukwasi is deported to Rukwanzi

near the border of DRC. The constitution under Article 2 of the constitution is the supreme law of the

land and any other law in conflict with it is void. It is binding on all people. Its primary purpose is

upholding and uplifting the Ugandan people and their rights. The denial of fundamental rights by the

impugned law makes it void

ISSUE 2

Chapter six of the legislature, under Article 77 establishes the parliament of Uganda. Whose

functions under Article 79 include the making of laws on any matter for the peace, order,

development and good governance of Uganda. Article 82 of the constitution establishes the office of

the speaker of parliament and under Article 82(4) no business in parliament shall be transacted in

parliament without the speaker. Clearly the speaker is the head of parliamentary business and the

CDDF cannot in any way interfere with the affairs of parliament as that would undermine the rule of

law, independence of parliament and the doctrine of separation of powers.

ISSUE 3

Article 98 of the Constitution of Uganda establishes the office of the president of Uganda. The Article

declares that the president shall be the Head of State, Head of Government and Commander-in-Chief

of the Uganda People’s Defence Forces. Article 99 of the constitution then goes ahead vest all

executive authority of Uganda in the president to be exercised in accordance with the constitution and

the laws of Uganda. Article 99(4) provides that subject to the constitution, the functions of the

president may be exercised by the president either directly or through officers subordinate to the

president. Article 110 of the constitution states inter alia that the president may in consultation with

cabinet with the cabinet, by proclamation, declare that a state of emergency exists in Uganda. It

further lays down the circumstances under which the state of emergency may be called, namely;
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where Uganda is threatened by external aggression, in which the economic life of the country or that

part is threatened by internal insurgency or natural disaster, or which render necessary the taking of

measures which are required for securing the public safety, the defence of Uganda and the

maintenance of public order and supplies and services essential to the life of the community. Article

209 spells out the functions of the defence forces which include to preserve and defend the

sovereignty and territorial integrity of Uganda, to cooperate with the civilian authority in emergency

situations and in cases of natural disasters, to foster harmony and understanding between the defence

forces and civilians and to engage in productive activities for the development of Uganda.

Clearly from the above provisions of the constitution, the CDDF has no power assume the powers of

the president even though he is her father.

ISSUE 4

Article 28(1) provides that in the determination of civil rights and obligations or any criminal charge,

a person shall be entitled to, inter alia, a hearing before an independent and impartial court or tribunal

established by law. Under the impugned law, the offenders are to be tried by a military tribunal

comprised of UPDF officers and the right to appeal is denied. Clearly the military tribunal is not a

competent court as provided for under Article 129(1) which lists the courts of judicature namely; the

supreme court, court of appeal, the high court and other subordinate courts as parliament may by law

establish. In the case of Joseph Tumushabe and Anor v Attorney General Constitutional Petition

No. 6 of 2004. where civilians were being tried in the General Court Martial and denied bail, the

Constitutional court held that it was unconstitutional to try civilians in the court martial since it was

not a competent court in which to try civilians. This was further held in the case of Michael

Kabaziguruka v Attorney General Constitutional Petition No. 45 of 2016; where Justice Kenneth

Kakuru emphasized that civilians could not be tried under the General Court Martial since it was not

an impartial court since its membership was determined by the president, meaning it was subject to

direction yet courts of Judicature under Article 128 are meant to be independent.