II.

RIGHT TO EQUALITY AND FREEDOM FROM DISCRIMINATION (ARTICLE 21)

The right to equality and freedom from discrimination can be seen as the bedrock of all other rights and
freedoms-thus an individual can be discriminated on grounds of religious belief (art.29) or gender (art.33)
or disability (art.36). The essence of the right to equality is that individuals should be treated in the same
i
manner irrespective of their peculiar characteristics or situation and in the corollary; freedom from
discrimination pertains to according different treatment to different persons in light of those characteristics
or situation. The grounds for discrimination include gender (sex) ,disability, race, ethnicity, color, social
status, political opinion, but this is not exhaustive, discrimination can also be in respect of marital status
(married) or sexual orientation/preference (gay or lesbian). Article 21 (4) for affirmative action (positive
discrimination) in favor of persons that have been marginalized by history, tradition, etc.

Affirmative action is postulated in further provisions, including article 32 and 33 (5), 78 and 180(2) (women) and
articles 36 and 78 (persons with disabilities). It is also evident in policies and measures adopted in education
(1.5points to Makerere, etc) and economic empowerment (entandikwa), etc. Affirmative action has been taken in other
countries, such as Namibia, in favor of blacks hitherto discriminated under apartheid laws: kauesa v. Minister of
Home Affairs (1994) 2 LRC 263

III. RIGHT TO LIFE (ARTICLE 22)

The right guaranteed under article 22 is the foremost right an individual can have and enjoy-in fact; it is the
fulcrum of all other rights. The right to life is secured in respect of both physically existing human beings
as well as the unborn child. The right seeks to guarantee against ‘arbitrary’ deprivation of life-to that end,
however, the right is not absolute, as long as its deprivation inures from a decision of a court or, for the
unborn child, as authorized by law. To ensure that deprivation of life through a sentence of death is not
arbitrary, article 22(1) stipulates a number of specific guarantees, by requiring that the sentence is passed
by (a) a court of competent jurisdiction; (b) in a fair trial; (c) in respect of a criminal offence under laws of
Uganda; and (d) confirmation of highest appellate court of sentence.

Quare: Was the Kotido Field court martial a ‘court of competent jurisdiction’? Were the two soldiers tried and
convicted of criminal offences under Uganda’s laws (i.e. NRA statute)? Was the sentence of death passed by the FCM
in a ‘fair trial’ (with its guarantees under article 28 of the constitution-independent & impartial court, presumption
of innocence, legal representation, etc.)? Was the sentence of the FCM confirmed by highest appellate court (i.e.
supreme court under article 132 of the constitution) ? In the end was the deprivation of life arbitrary?

1 See for instance, discrimination under citizenship laws conferring capacity to confer citizenship to foreign spouses
on Botswana men ( and not women): Unity Dow v. Attorney General(1992) LRC (const) 623; policy of a catering
establishment not permitting admission of unaccompanied women in its bar: Longwe v. International Hotels (1993)
(above)
2. This fact was stated by the constitutional court in an obiter dictum in kyamanywa v. Uganda, constitutional
reference No. 10/2000 3.The penal code penalizes abortion save where the termination of pregnancy endangers the
life of mother, etc in certain jurisdictions, the issue is whether a feotus is a person and whether there exists feotal
rights: see Chantal Daigle v. Jean Guy Tremblay (1990) LRC (Const) 578 (Canada SC) 4.see H. Onoria ‘Soldiering and
Constitutinal Rights in Uganda-The case of the Kotido military Executions’ .
iiThere is a debate whether article 22 ‘constitutionalises’ the death penalty or only recognizes the existence of the
death penalty. The Odoki commission report shows that the retention of the death penalty for heinous offence was on
account that it was supported by the majority of Ugandans (thus embracing the ‘populist’ theory of death penalty
advocates). There are legal and constitutional arguments regarding the death penalty-apart from the argument that
it fringes the right of life (and personhood) and, as the fulcrum of other rights, puts an end to the enjoyment of all
those other rights (See; Susan Kigula & Ors Vs AG; State v. Makwanyahe (1995); catholic commission for Justice
& peace in Zimbabwe v. Attorney General (1993)), but that it also infringes the right to freedom from cruel, inhuman
and degrading treatment or punishment ( owing to the manner of its execution (hanging, electrocution, etc.) and the
death row phenomenon) (in Uganda, this would be contrary to article 24 which is non-derogable under article 44 (a):
Makwanyane, Catholic Commission, Pratt etc.

Over the decades from the 1980’s, the right to life has been interpreted beyond merely protecting against
physical termination of life to encompass the right to sustenance and livelihood. To that end the right has
been extended to a whole range of socio-economic rights (incl. food, shelter, education, employment,
health, clean and healthy environment)-India has been the foremost in this exercise.

See; Salvatori Abuki Vs AG.

Thus removal of pavement-dwellers (beggars) from the streets of Bombay without any alternative means for their
survival was held to constitute an infringement of the right to life guaranteed under article 21 of the Indian
constitution, which included a right to livelihood; Telis v. Bombay Municipal Corporation (1987) LRC (Const) 351
( India),while the destruction of brothels in Dhaka was similarly held to infringe the rights to life of the prostitutes
thus deprived of their source of livelihood: BSEHR v. Government of Bangladesh (2000). Other socio-economic
rights linked to right to life include clean and healthy environment: Indian council for Enviro-Legal Action v. Union
of India (1996) 2 LRC 226; Ramakrishnan & Ors v. State of Kerala (1998); education: Krishman v. state of Andreh
Pradesh (1993) 4 LRC 234; employment: DDHEU v. Delhi Administration (1993) 4LRC 182; shelter and housing:
Lawson v. Housing New Zealand (1997) 4 LRC 369; peace: Operation Dismantle Inc. v. The Queen (1986) LRC 9
Const) 421.

IV. RIGHT TO PERSONAL LIBERTY/ BAIL (ARTICLE 23)

The right to personal liberty is secured under the article 23. The presumption of enjoyment of the right is
displaced under specific instances under which the right may be restricted under article 23 (1), viz.
(1) Maintenance of law and order-where an individual is arrested for commission or suspicion of
commission of criminal offence (art. 23 (1) (c)). Restriction in this instance is however subject to
provisions of article 23(4) requiring production before a court not later than 48 hours.
(2) Administration of justice where an individual is deprived of personal liberty upon conviction to a
term of imprisonment in respect of criminal offense (Art 23(1)(d); lunatics, alcoholics, drug addicts,
etc for treatment (Art 23 (1)(e); illegal immigrant for deportation or expulsion (23(1)(f).
(3) Prevent spread of contagious or infectious disease. E.g ebola.

The Constitution 1995 attempts to strengthen the guarantee under article 23(4) with the 48hrs limit
compared to its 1967 predecessor with its vaguer notion of ‘as soon as reasonably practicable’-
even then a detention of over 7 days was held to constitute an infringement of personal liberty.
Ochieng V Uganda [1969] EA 1.

The right to personal liberty is buttressed by several guarantees that are substantive, procedural or
remedial. First, the right requires an individual arrested to be detained in places authorized by law-
the feature of such places being that- (i) they are gazetted as places for detention
(ii) are accessible to the general public (to enable next-of -kin (the prisons and police cells are
places authorized by law, while it’s doubtful the same can be said of safe houses). The purpose of
Art. 23(2) and (5) is to secure the security the individual and guard against incommunicado
detention. Second, an individual arrested or detained is to be informed immediately of the reasons
 for the arrest (restriction or detention) and (iii) right to consult a lawyer as stipulated under Art.
23(3). (The phrase detention has been interpreted to mean a restraint of liberty of varying duration
other than an arrest or where the movement of an individual comes under the control of another
person [the Queen v Therens [1986] LRC Const.445 (Canada SC).

Thirdly, the right enjoins the right to apply for bail. The grant of bail as stipulated under Art. 23(6)
is to allow an individual facing trial to enjoy liberty while reporting to attend trial. The right is a
delicate balance between personal liberty and administration of justice by which courts are given
discretion to determine whether the conditions and circumstances of the accused warrant bail whilst
not endangering the justice system.
The right to grant of bail has been construed to be premised on the principle of presumption of
innocence. (Onyango Obbo & Anor Vs Uganda Crim. Misc Apl No. 145/1997

The right to ‘automatic’ grant of bail is provided for under Art. 23(6)(b)(c) where individuals who
have been on remand for 60 days (offences triable in a Magistrates court) and 108 days (offences
triable by High Court).

Fourth a remedial guarantee is provided to personal liberty in the form of right to an order of Habeas
corpus under Art. 23(9) and made non-derogable under Art. 44 (a).

12. GP Tumwine Mukubwa, the promotion and protection of Human rights in East Africa (2000) 6 (2)EAJ P&HR 130.153
13. This theory was however rejected by the Tanzanian court as the basis for retaining the death penalty: Mbushu v. Republic
(1995) 1 LRC 216
14. See AN Makubuya, The Constitutionality of the Death Penalty in Uganda: A Critical Inquiry (2000) 6 (2) EAJP &HR 222.

V. FREEDOM FROM TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT (ART 24 & 44 a)

The freedom(s) –seven of them-are tailored towards the protection of the dignity of the individual. The
definition of the various facets of the freedoms in article 24 was articulated by Justice Oder in the appeal
in Attorney –General v. Salvatori Abuki (Constitutional Appeal No.1/1998). The freedoms are infact non
derogable under article 44(a).

What is cruel, inhuman or degradable as treatment or punishment depends on the virtues and perceptions
in society. Thus it is the contention that the death penalty (means of execution and the death- row
phenomenon) constitutes cruel, inhuman and degrading treatment or punishment: State v.Makwanyane &
Anor (1995) 2 LRC 269 (South Africa);an exclusion order of 10 years under the provisions of the witchcraft
act was treated in the same light: Abuki case (1997). The same position has been taken in respect of
corporal punishment both under the penal system: kyamanywa case (2000); Sewankambo v. Uganda,
Crim Appeal No. 16/1999 and educational system: Nganwa High School (1998). Significantly, in response
to the argument against unconstitutionality of corporal punishment in the view that the law admits of
‘reasonable chastisement’, the constitutional court (by majority of 3-2) in Kyamanywa case observed that
the freedoms under article 24 are non derogable under article 44, and therefore no qualification is to be
made as regards the manner of application of the prescribed punishment. Other acts that constitute a
violation of the freedom(s) is death penalty ( Makwanyane (1995) ), spousal battery ( wife beating/domestic
violence), excessive sentences

VI. FREEDOM FROM SLAVERY, SERVITUDE AND FORCED LABOUR (ARTICLE 25)

The freedoms from slavery and servitude guaranteed under article 25(1) are non derogable under article
44(b). On the other hand, the freedom from forced labor is not so, given that certain activities do not come
under definition of forced labor under article 25(3), including service in the armed forces.

For conscientious objection to military service as ‘forced labor’: Attorney General v. Major General
Tinyefunza, Constitutional Appeal No. 1/1998 (esp. Justice Oder). In the case ex parte Nasreen(1973), the
High Court of Kenya held that and order directing a wife to return to her husband was tantamount to
placing her in a state of servitude ( in addition to violation of her rights to liberty and freedom of movement).

VIII. RIGHT TO PRIVACY (ARTICLE 27)

The right to privacy guaranteed under article 27 is in respect of unlawful intrusions upon the person, home
and correspondence of an individual. The ‘unlawful’ imports the notion of searches upon the person or
home without a ‘search warrant’ or ‘reasonable cause’. Similarly, this extends to interference with
correspondence (e.g. intercepting mail, tapping of phones, accessing bank statements, etc), which may
require obtaining a court order.

Thus where police officers entered a dwelling place (a trailer) without a search warrant and without
‘reasonable cause’ to suspect that the offender was in that place, this was considered to be an infringement
of the right to privacy: The Queen v. Therens (1986) LRC (Const)455 (Canada SC) (NB the court also
pointed out that fingerprinting of the accused was an instance of violation as it involved ‘a search and
seizure related to the accused body’). In the recent times, concerns over privacy rights in Uganda have
been raised in respect of the Leadership code 2001 (declaration of wealth of spouses) and Prevention of
Terrorism Act 2002(seizure of bank accounts). Elsewhere the right to privacy has pertained to issues such
as abortion and homosexuality.

IX. RIGHT TO A FAIR HEARING (ARTICLE 28)

The right to a fair hearing guaranteed under article 28 is underpinned by the concepts of natural justice and
due process. The right (in this primary features and guarantees) is non derogable in light of article 44(b)
and pertains to both courts and tribunals and is respect of civil and criminal matters. The primary features
of the right are provided under article 28 (1), viz:

(a) A speedy trial ( or trial within a reasonable time)

(b) A public trial
(c) A trial before an independent and impartial court.

What constitutes a speedy trial (or trial within a reasonable time) is not defined and seems to be dependent
on the socio-economic conditions, especially in the Third World Commonwealth Countries: DPP .v. Tokai
(1996) 2 LRC 314 (Trinidad & Tobago); Bell v. DPP (1986) LRC (Const) 39 (Jamaica) (Contrast with a
14 month delay in New Zealand: Martin v. Tuaranga District Court (1995) 2 LRC 788). Recent trial before
the Kotido Field Court Martial win two and half hours was represented by the Government as an instance
of a ‘speedy trial’, but was it intended that a trial be carried in haste at the expense of fairness and in
disregard of the guarantees that buttress it under article 28 (3)? The trial in public is to endure the public
appraisal of the fairness of the trial, save that trial can be conducted in camera (outside public purview)
where matters of national security or protection of morals is in question-thus the right to information in the
hands of state (testimony before parliamentary committee) and its use in judicial proceedings before a court
was was subjected to it being heard in camera under article 28 (2): Tinyefunza case (1997).
An independent Court/Tribunal implies that the officers of the court should not be subject to the authority
or direction of another organ or person-thus provisions of the referendum other provisions Act 1999 which
mandated Judges to frame referendum question was considered to be a contravention of article 28 (1) as
far as it affected the independence of the Judges: Dr. Rwanyarare & Anor v. Attorney Generaal,
Constitutional petition No. 5/1999. On the other hand an impartial court imports the idea there should not
be a likelihood of bias in the court or any one of its officers- thus where the trial Judge had close connections
with the government in power of which the accused was charged with attempt to overthrow by arms
(treason), the trial was held to have not been impartial: Professor Isaac Newton Ojok v. Uganda, crim.
Appeal No. 33/1991. Similarly, a Lord of the House of Lords in UK was asked to step down on account that
his wife worked for Amnesty International (an organization that was at the centre of the efforts to have
Pinochet tried for crimes against humanity): Pinochet case (1999)

The right to a fair trial is buttressed by several guarantees which are central to criminal proceedings. First
is the right to presumption of innocence under article 28 (3) (a) which places the onus of proving guilt on
the prosecution and beyond reasonable doubt, save the instance where the reverse onus is admitted as under
article 28 (4). The right also prohibits situations in which there is a pre trial prejudging of the guilt of the
individual (e.g. where authorities make pronouncements of guilt).

The reverse onus is prima facie regarded to contravene the right to presumption of innocence. Thus where
a law, the Narcotics Control Act, provided that a person found in possession of prohibited narcotic was to
be presumed, unless the accused showed the contrary, to be in possession for the purpose of trafficking,
this instance of reverse onus was seen as contravening the right to presumption of innocence: The Queen
v. Oakes (1987) LRC (Const) 477 ( Canada SC).Laws shifting the onus proof included the administration
of Karamoja Act

17
Although it could also be said to extend to administrative authorities as stipulated under article 42

Second, individual before a court is entitled to be informed in a language that he or she understands the
criminal charges proffered against him as stipulated under article 28 (3) (b). the corollary is the right to be
accorded the facilities of an interpreter where an individual does not understand language of the court under
article 28 (3) (f)

Thus where a trial was conducted in English , in which the appellant had been charged with the possession
of unauthorized literature and he only understood Portuguese and his native Mozambican language, the
Kenyan High Court held that there was an infringement of the right to be afforded with the services of an
interpreter: Andrea v. Republic (1970) EA 26. See also Esau Namanda v. Uganda (1993) Kampala Law
Reports 38
Thirdly the individual is guaranteed a rubric of rights crucial in the defense of the criminal charges against
him or her under article 28 (3) (c), (d) and (e), and these pertain to preparation and actual defense. An
individual thus has a right to adequate time and facilities to prepare a defense as well as the right to legal
representation during the actual defense of the case (and where criminal charges carry sentences of death
or life imprisonment, legal representation is at the expense of the state).

The right to adequate time and facilities for preparation of legal defense has been considered to include
the right to seek an adjournment to seek services of an advocate where counsel retained withdrew from
handling appellants case: Zackary Kataryeba v. Uganda (1996) HCB 36; although this was further, in
light of absence of legal counsel during the hearing before the court, an infringement of the right to legal
representation: see also Muyimba &Ors v. Uganda (1969) EA 433, where the advocate was unable to be
present at the trial in Masaka as he was engaged in court in Kampala on date of hearing of case in Masaka.
In Esau Namanda case (1993), it was held that a summary conviction of the appellant of perjury on account
of discrepancies in his testimony as to his age was contrary to his constitutional right to be ‘informed of
his offence’ and to permit him to ‘prepare his defense’ ( under article 15 (2) (b) and (c0 of the
1967constitution)18. The right to legal representation at expense of the State (for indigent persons) has been
recognized by South African Courts: State v. Vermann; State v. DuPleiss (1995) 2 LRC 252.
The question of whether the right to legal representation includes a right to ‘legal aid’ for the indigent
(poor) has been raised: see e.g. Centre for Legal Research & Anor v. State of Kerala (1987) LRC (Const)
544 (India SC).see also recent advocates (Amendment) Act 2002 requiring advocates to avail free legal
assistance as part of their practice, etc.

Fourth the individual is entitled to equality of arms under article 28 (3) (g) (i.e. to cause attendance and
examination of witness, submission of evidence, etc). Fifth, an individual has a right to be tried in presence
under article 28 (50, and is thus guaranteed against trial in absentia (save situations of disruptive behavior
in court).

Where a trial magistrate and a plea of guilt in respect of not only the accused who had been brought to
court on day of hearing but also three other accused charged jointly( but were not in court that day), the
high court held , on appeal, that there had been a failure on the part of the magistrate to address his mind
to article 28(5) which entitles an accused person to be present at his trial: Zachary Kateryeba case (1996).

Sixth an individual has a right to specific guarantees obtaining as tenets of criminal law ,including a right
against ex post facto laws (in terms of offences and severe penalties) (article 28 (7) and (8), a right against
double jeopardy (in respect of conviction, acquittal and pardon) ( article 28 (9) and (10), a right against self
incrimination under article 28 (11) ( extending to spouse) and a right to trial for offences capable of a clear
definition under article 28 (12).

The right against ex post facto laws and to trial for offences capable of clear definition are premised on
the notion that an individual cannot be able to determine that his present conduct will at a future date be
an offence or carry a severer penalty, or even that his conduct is in fact proscribed (prohibited) under the
law. The Constitutional Court had considered the offence of witchcraft under the Witchcraft Act incapable
of precise definition as to offend article 28 (12), but this was overruled by the Supreme Court: Abuki case
(1996/1997). On the other hand, the law of false news has been held to vague as to meaning of the words
constituting the offence,incl. ‘publish’, fear or alarm, ‘public’, ‘statement’ and ‘false’ : Mark Cahvunduka
& Anor v. Minister for Home Affairs, case No. 36/2000 (Zimbabwe); see also dissenting judgment of
Twinomujuni in Onyango-Obbo & Anor v. Attorney General, Constitutional petition No. 15/1997. The
right against self incrimination makes the accused ( and spouse) competent but not compellable witnesses:
cf.Rex v. Amkeyo (1917)
\

XII. RIGHT TO EDUCATION (ARTICLE 30)

The right to education is one of the socio-economic rights stipulated in for the first time in Uganda’s
Constitution( see parallel of right to education as a right of child under article 34)

NB: In India , owing to absence of a separate right on education in the Bill of rights, education has been
enforced as part of he right to life-the court have asserted that ‘education lends dignity to an individual’:
Krishnan v. State of Anhra Pradesh (1993). In uganda the right under article 30 has primarily been
enforced by the UHRC: see e.g. Mpondi v. Nganwa High School

XIII: RIGHT TO A FAMILY (ARTICLE 31)

The right to family is actually a rubric of rights within the context of the family, from the moment of
entering into a marital arrangement until its dissolution by divorce and death of one spouse. At best article
31 can be described as guiding principles on rights of the parties that should guide formulation of a domestic
relations law-the rights are recognized in the context of-(i) consent of marriage; (ii)right to found a family;
(iii) equal rights during and after dissolution of marriage (as regards property, children, etc.); (iv) succession
to property upon death of spouse.

Consent to marriage under article 31 (2) was at the centre of a petition filed by a widow being subjected to
custom of ‘wife inheritance’ in Pallisa: Malliam Adekur & Anor V. James Opaja & Anor, Constitutional
petition No.2/1997. The outrage of the ‘Nakku’ tradition ,with a 14 year old as ceremonial wife, centred
among other things that the Nakku would not be expected to marry, and so it was argued an infringement
the 14 years old future right to ‘marry and found a family’. Although the court opted to deal with the matter
from the perspective of repugnancy under section 16 of the Judicature Act 1996, the purported Toro
customs that precluded a widow, because her husband was the Omukama, to inherit her deceased
husband’s property have been construed as violation of article 31 (3): Best Kemigisha v. Mable Komuntale
(1998).

XIV; RIGHTS OF WOMEN (ARTICLES 32 AND 33)

The rights of women occupy a central part of the Constitution, whose own lexicography (language) has
been made gender-neutral. Because of the historical marginalization of women, the primary starting point
for women’s rights is article 21 (equality and non discrimination as well as affirmative action). The status
and identity of women still remained predicated upon patriarchal values in most of the communities- the
values are invariably steeped in custom and tradition. Notably, article 33 (6) does prohibit customs and
traditions that militate against the dignity of women, while article 33 (1) addresses the need to treat women
with dignity in the same manner as their male counterparts. On the other hand, article 33(2) stresses
essentially ‘reproductive rights’, and article 33 (3) and (4) equal treatment of women in all sectors of life,
and article 33(5) reiterates the notion of ‘affirmative action’ already finding mention in article 21 (4) and
32(1).

Courts in the Commonwealth have been pro active in giving effect of freedom from gender based
discrimination: Unity Dow (1992) (citizenship laws depriving Botswana woman capacity to confer
citizenship to her American husband (and children); Ephraim v. Pastroy (1990) LRC (Const) 157 (
Tanzanian courts condemning as discriminatory custom that allowed a woman to inherit father’s land but
not to dispose it off); Longwe v. Intercontinental Hotels (1994) (policy of hotel discriminating against
admission of women in its bar); Devathi v. Union of India (1989) LRC (Const) 628 ( India coort
condemning penal law on adultery not allowing wife to recover compensation against adultress, while a
husband can against the man committing adultery with his wife); 22student representative council of
Molepolole College of Education v. A-G (1995)3 LRC 447 ( Botswana court declare policy of a college to
expel girls getting pregnant as discriminatory);Vishaka v. State of Rajasthan (1997) 3 LRC 361 ( Indian
Supreme Court declaring sexual harassment as a form of discrimination).

XV: RIGHTS OF CHILDREN (ARTICLE 34)

The rights of the child recognized under article 34 are elaborated under the children’s Statute 1996.

XVI: RIGHTS OF MINORITIES (ARTICLE 35)

XVII:RIGHTS OF PERSONS WITH DISABILITIES (ARTICLE 36)

The rights of persons with disabilities under article 36 have expression in provisions of non discrimination
and affirmative action under articles 21 and 78.

XVIII: RIGHT TO PROFESS AND PRACTICE A CULTURE (ARTICLE 37)

The right to culture is recognized under article 37 and it includes the process of its practice,
professing and promotion. This would invariably include the language, traditions as well as
institutions (e.g. traditional leaders as part of institutional set up are constitutionalized under article
246). However, the right to profess and practice a culture and promote cultural institutions must
entail practices that conform to the constitution or right sunder it (see article 246 (2)).

The right to profess and practice a culture was upheld in respect to the institutional set up of the
Kingdom of Toro where the Queen Mother raised an objection to and requested an injunction
against persons elected as regents of the Kingdom: Lady Kezia Rukiidi & Anor v. John Katuramu
& 2 Ors, HCCS No. 598/1996.

XIX: THE RIGHT TO PARTICIPATE IN AFFAIRS OF GOVERNMENT (ARTICLE 38)

The seemingly unfashionable of rights under chapter IV, perhaps given restrictions upon freedoms
of assembly and association with regards to political parties. Article 38 recognizes participatory
rights with regards to the political life of a country, in the sense that individuals can stand for
election or participate in the election of representatives.23

XX: RIGHT TO A CLEAN AND HEALTHY ENVIRONMENT (ARTICLE 39)

The right to clean and healthy environment is recognized with respect to every ‘citizen’. It has also
been set up as a separate and distinct right. The right generally intends to ensure that society enjoys
air, water, land, etc. that is clear of pollutants, etc.

Recent efforts at enforcement of the right to a clean and healthy environment have been in the
context of tobacco smoking in public places, especially second hand smoke (Environmental
Tobbaco Smoke( ETS). In uganda, in a consent judgment before the High Court between NEMA
and TEAN, it was held that smoking in public places not only endangered the rights of non smoking
members to life under article 22 but also their rights to a clean and healthy environment: The
Environmental Action Network Ltd. V Attorney –General & Anor, Miscellaneous Application
No. 39/2001. In India, the high court of Kerala affirmed that smoking in public endangered the
right to life which was ‘considered’ sufficiently wide and far reaching to include the right to
pollution free-free air and decent environment’ (notably India does not have a separate
constitution freedom on this right comparable to article 39 in Uganda ):Ramakrishnan & Ors v.
State of Kerala & Ors (1998). See also Indian council for Enviro –Legal Action v. Union of
India (1996)2 LRC 226(India) (pollution by Indian industries of land and water).

XXI: ECONOMIC RIGHTS (ARTICLE 40)

Article 40 contains a rubric that are dubbed ‘economic rights’, and is perhaps the bare minimum
as regards rights of workers. Even then, these are at best vaguely laid out-for instance, there is no
right to work as such rather what is recognized as right to work in secure working conditions. The
other attributes of work related rights are in respect of equal pay, leave ( for women employees,
maternity leave), etc. of interest, under article 40 (2) is a recognition of the right to pursue lawful
conception or profession.

Sexual harassment has been held to constitute not only a form of discrimination (and failure to
respect dignity of women) but also the failure to ensure the right to work in a safe and secure
working environment: Vishaka v. State of Rajasthan (1997) 3 LRC 361 (India0. In the Onyango
–Obbo caes, the petition attempted to argue unsuccessfully that false news provisions infringed
their rights to pursue lawful profession (of journalism). Similar arguments were presented in a
petition challenging the provisions of the press and journalists Statue 1995 on licensing and
minimum qualification for journalists: Uganda Journalists Safety Committee 7 Anor v. Attorney-
General, Constitutional petition No. 7/1997 (dismissed for want of jurisdiction of the
constitutional court as about enforcement of rights than interpretation of constitution.

23 This right corresponds with the right recognized under article 22(1) of the Universal Declaration of Human Rights (UDHR) of
the African charter on Human and peoples Rights.
24see National Environmental Management Authority Statute, 1995