CONSTITUTIONAL LAW 11

NOTES
2021

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Contents
BACKGROUND AND DEFINITIONS.................................................................................................2
(1) What is constitutional law?...........................................................................................................2
(2) Why do we study constitutional law?...........................................................................................2
(3) What is a Constitution?.................................................................................................................3

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 BACKGROUND AND DEFINITIONS

(1) What is constitutional law?

Constitutional law is not only the study of the different organs of government as stipulated in the
constitution and how they operate or the significant roles they play in our day to day life but also
covers the different legislation passed by the Parliament or any other law making body, which
legislation must have a bearing on the constitution. The subject tries to analyse different key players,
who have made history and played significant roles in the destiny of a particular country and how
their actions affect the country. Constitutional law also considers human rights as fundamental, the
respect of which is the cornerstone of any democratic society. In this regard, constitutional law is also
concerned with the different ways a person whose human rights have been violated can get redress
through the different courts of law or quasi- courts. At the end of the day, constitutional law aims at
tracing where we are coming from, what went wrong and finding solutions to making the nation a
better place for not only ourselves but also our posterity. 1 Constitutional law must be however be
distinguished from administrative law. While both areas of the law fall under a broader branch of the
law termed ‘public law’ and do actually bear some similarities, they are nevertheless different in
form and substance. Administrative Law concerns itself with the system of rules whereby
governmental powers arise particularly with the fashion in which those powers are overseen /
checked.

(2) Why do we study constitutional law?

 As already pointed out, the subject aims at tracing the bearing of the actions of the different
personalities in the destiny of a nation.
 The subject aims at creating a quest in the student to question what went on in the past and
devise ways of making the country a better place to live in. In this regard, a student is
expected to have well understood his or her constitutional history before he or she can pass
judgement on the different significant personalities who have played a role in the destiny of
the country. A constitutional law student is thus expected to give a well reasoned answer to
any issue that might confront him basing himself on the constitutional development of the
different material areas he or she is bound to use to confront such issues.
 Help students make better decisions that steer the destiny of a nation.
 For constitutional law practice.
1
See the preamble to the 1995 Uganda Constitution.

2
(3) What is a Constitution?

The concept of a constitution dates to the city-states of ancient Greece. The philosopher Aristotle
(384–322 B.C.), in his work Politics, analyzed over 150 Greek constitutions. He described a
constitution as creating the frame upon which the government and laws of a society are built.

A Constitution is the basic law, which governs a particular society. It is the basic / fundamental law
from which all organs of government and the state derive their legitimacy. A constitution consists of
those laws that it deems fundamental and essential for the inhabitants of a state to exist in a regime of
governance and well being. The term “Constitution” is usually used to define the fundamental law,
which is put in place to govern a particular society.

Every state has a constitution in the sense of body of rules by which the state is governed. It is
usually embodied in a single, written document (except Israel and UK). The first written Constitution
was that of the United States promulgated in 1786.

In modern Europe, written constitutions came into greater use during the eighteenth and nineteenth
centuries. Constitutions such as that of the United States, created in 1787, were influenced by the
ancient Greek models. During the twentieth century, an increasing number of countries around the
world concluded that constitutions are a necessary part of democratic or republican government.
Many thus adopted their own constitutions.

In its ideal form, a constitution emanates from the consent and will of the people whom it governs.

A constitution may take many forms and structures and may differ in details and coverage, but most
importantly it is a fundamental law upon which a society is governed. Organised societies are
characterised by the presence of a government and the constitution concerns itself in the
establishment of government and distribution of powers between various organs of government. Each
organ should know the extent of its powers.

A constitution is also referred to as a contract between rulers and subjects or government and its
citizens. Therefore, it also concerns itself with the relationship between the individual and the
government i.e. the rights of the individual in a particular society.

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(4) Why is a constitution described as ‘fundamental’?

A constitution is a fundamental law because all laws get their authority from it. Each law must be
justified on the basis of some provision in the Constitution. If any law is inconsistent with the
constitution then, that law will be void2.

A constitution is also referred to as fundamental because it concerns itself with the ultimate
distribution of power. It defines/provides methods of acquisition of power, i.e., who may be elected,
who may vote, powers to be enjoyed in office etc. It is fundamental because it is a basic document for
spelling out the relationship between individuals and government, provides for rights, duties of
government towards an individuals and rights, duties of individuals.

Constitutions all over the world are concerned with some basic issues and these are: -

-The power to make laws and how these powers are to be handled. This is the responsibility of the
legislative arm of government.
 Exercise of executive authority i.e. the Leadership of the country, including the cabinet, etc.
 Must put in place a judiciary system, i.e. how judicial power is to be exercised.
 Must set up fundamental rights and duties of individuals and how they should be enforced.
 Must deal with the question of Citizenship and identity. i.e., Who has a right to be a citizen?
 Constitutions also cover the issue of transfer of power (i.e. elections)
 Land tenure system and control of natural resources is another area covered in the
Constitution.
 Public finance: i.e. the various ways of raising revenue, how it will be spent, and what system
of control will work against malpractices.
 Establishment of security organs e.g. army and police.
 Public system: i.e. the administration aspect of government.

2
See article 2 of the 1995 Constitution.

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One of the basic principles of constitutional law is that a country "should create a constitution able to
move with the times without seeming to be destroyed by the times."

Constitutions are made by states and statehood is as important a concept therein, enshrining 3
attributes, viz.:

1. A defined territory (distinct borders),

2. A people in terms of nationality and sometimes citizenship and
3. A system of organised government.

BASIC CONCERNS OF CONSTITUTIONS

1. The power to make law and the manner in which these powers are to be handled ie the
Legislative authority of government.

2. Constitutions are concerned with the exercise of executive authority.

3. The manner in which legal and political disputes are to be settled that is the Judicial
system of government.

4. The Constitution is concerned with identifying fundamental rights and duties of

individuals and how these should be enforced.

5. It is concerned with the issue of citizenship.

6. Most Constitutions look at the question of property and property rights including
resources like land. It is concerned with public finance ie raising of revenue, expenditure,
system of control against malpractices.

7. A Constitution will also concern itself with the phenomena of internal and external
securities and with the different bodies that make up this security.

8. It is concerned with administration of the public sector for example Local government.

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 Whatever the specific issues the Constitution is concerned with, the guiding principle is
that it should be able to move with the times without destroying its terms that is, it should
be time less but flexible.

COMMON CHARACTERISTICS OF CONSTITUTIONS

(1) The question of who is supreme under the 1995 Constitution?

Most Constitutions provide for their own supremacy over all authorities and person throughout the
country.3 Thus, in the case of Joseph Tumushabe v. A.G,4 the Constitutional Court held that all
provisions of the Constitution are binding on all authorities in Uganda unless specifically excepted by
the Constitution itself.

The same Constitutions usually incorporate a clause rendering void any other law or custom that is
inconsistent with any of their provisions. 5 The fact that the supremacy of the Constitution cannot be
diluted by any means was emphasized in the case of Al Haji Nasser Ntege Sebaggala v. A.G & Ors 6.
One of the issues in this case was whether the Constitutional Court still had jurisdiction as conferred
upon it under article 137 of the Constitution to entertain the petition in the face of the some
provisions of the Constitution that had been incorporated in the Local Government Act depriving it of
jurisdiction. The Constitutional Court held that it still had jurisdiction to entertain the petition by
virtue of article 137 of the Constitution. The Court could not lose jurisdiction merely because the
Local Government Act had incorporated certain articles of the Constitution. Provisions of the
Constitution cannot be diluted by incorporation because this would derogate from the provisions of
article 2 that guarantees supremacy of the Constitution.

There are a number of factors that make the Constitution supreme and these are:

-All executive authority must be derived from the constitution and must be exercised according to
provisions of the constitution. Any exercise beyond what is provided for in the Constitution will be
regarded as arbitrary.

3
For example see article 2(1) of the 1995 Uganda Constitution.
4
Constitutional Petition no. 6/2004
5
Article 2 (2) of the 1995 Uganda Constitution.
6
Constitutional Petition no. 1/99

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-The Judiciary is vested with the responsibility of interpreting the constitution but that jurisdiction
does not mean that the judiciary can make its own constitution. The judiciary must exercise its
jurisdiction within the confines of the provisions of the Constitution. All this makes the constitution
supreme.
However there are some few countries that don't regard their constitution as supreme law. For
example, in Britain, it is parliament, which is supreme. Parliament there can pass any law, which has
the effect of changing what is currently regarded as a constitutional principal.

(2) The Constitution as a different kind of law: Sui generis (a special kind of law)

Perpetuity: A constitution is normally made to last an undefined period of time unless it is stated
that it is an interim one e.g. the 1966 Constitution.

The Constitution should be perpetual because it is designed as a broad instrument of government.

There is a saying that the Constitution is made today in order to identify and address issues of
tomorrow ie a Constitution takes a long-term view of issues and attempts to address the specific
problems affecting a country at the time at which it is made but also to be flexible enough in order to
take care of future developments.

Certainty: The Constitution should be certain. Its provisions should be well known and accessible
such that in times of conflict the courts can fall back on it. That is why they are written. They are
usually contained in a single document or series of documents that are clearly known as the
Constitution.

This means the provisions of the Constitution should be certain or definite. They should be well
known and accessible in terms of language so that it can be understood and interpreted in order to
enable society to deal with conflicts that may arise over the enforcement of Constitutional provisions.

Flexibility in the provisions for system of amendment: A Constitution must be accommodative of

new social, economic and political changes etc. A good constitution must have a mechanism where
it can be changed to suit new developments. Some constitution can be amended by a simple majority
in parliament, other by referendum, other by special majority in Parliament.

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A Constitution may also have various ways of amending its different articles. In some constitutions
there are entrenched provisions which cannot be amended easily as well as others which can be easily
amended.

The broader topic of the amendment of the Constitution will be dealt with in due course.

Providing for change

Good Constitutions provide a mechanism which enables the instrument to change to accommodate
new social and political economic changes and ensuring that the Constitution can accommodate those
changes. There are different ways of providing for amendment of the Constitution. Some can be
amended by simple majority of parliament eg. In Britain, yet others may be amended by referendum
while others may require special authority. Amendment is a theory of maintaining that the
Constitution remains relevant by providing for a basic change.

SOURCES OF CONSTITUTIONAL LAW

In countries with written constitutions there is no problem as to what the source of the Constitution
is. The written constitution will be source itself. However, there can be various sources of
constitutional law apart from the constitution and these may be described as supplementary
(ORGANIC) laws. They include:

1. The Constitution:

2. Ordinary legislation:
Various laws passed by the sovereign parliament in some instances determine the
constitution. E.g. In Britain there are various statutes or Acts of Parliament which are sources
of the constitution e.g. the Magna Cata - This was an Act of parliament in 1215. It is
regarded as the 1st constitutional statute in Britain. It was the 1st attempt to limit the absolute
power enjoyed by the feudal kings.

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 Some of the provisions set down by the charter were the following: -
 The rights of various classes of people in the community. (Barons - Landlord and the
Monarch);
 Trial by a Jury of one's peer;
 Limitation on the power of government in matters of taxation;
 Provisions that there should be no punishment in any way other than through a trial according
to the law.
"Its aim was not to make a constitution, but to seek protection against arbitrary actions of the king
and government".

Bill of Rights of 1688: Laid out some general principles to be followed up by government in the
general administration of the country e.g.

 All laws could only be made with the consent of parliament;

 Any form of taxation without the consent of parliament was illegal;
 The people had a right to petition to the king for redress of grievances;
 Parliament was guaranteed freedom of speech and debate;
 No army could be raised without the consent of government;
 Elections for members of parliament to be free;
 No excessive bail should be demanded;
 Nobody should be deprived of his property unless as a consequence of a punishment
conferred in legal proceedings;
 Subjects who are Protestants may have arms as protection.
 "The intention was not to make constitution but to establish the sovereignty of parliament as a
representative body of people".

Act of Settlement 1700: This involved the issue of royal succession, stating that only members of
the Church of England could be King/Queen of England. It arose out of hostility towards Roman
Catholic Prime Ministers.

Ordinary legislation is an important source of Constitutional law as it sets out in many different
respects specific rights, duties and obligations. Eg the case of Commissioner of Prisons, Ex parte

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 7
Matovu was a detention without trial and sought to establish whether such detention was in
conformity with the Constitution. The idea of legislation is to provide one with a factual picture of
the extent of the Constitutional rights.

In conclusion, the Constitution of any country provides you with a broad framework with specific
details and the extent to which the Constitutional rights are to be ratified.

NOTE:
Even in cases where there are written constitutions there are some statutes which have important
consequences and they are normally important in the study of constitution law. e.g. the law of
detention in Uganda under the Detention Ordinances.

3. Judicial precedent i.e. decisions of courts of authority. These are similar cases decided in a
similar way. Judicial precedents are important in so far as unwritten constitutions are concerned.
Judicial precedents also play a very helpful role in cases where a constitution is written in general
terms. E.g. in the case of A.G v. Osotraco Ltd8, the Court of Appeal confronted with the question of
determining the constitutionality of an existing law depriving the appellant of his right to property in
the face of the provisions of the Constitution guaranteeing the same, interpreted Article 273 of the
Constitution as empowering all courts to modify existing unjust laws without necessarily having to
refer all such cases to the Constitutional Court. The provision enables the court to expedite justice by
construing unjust and archaic laws and bringing them into conformity with the Constitution, so that
they do not exist and are void. The article does not however oust the jurisdiction of the Constitutional
Court under art. 137 where it can later declare these law as unconstitutional.

In the case of Kyamanywa Simon v. Uganda9, the appellant sought to appeal to the Supreme Court
against his sentence arguing that caning is a form of torture, cruel, inhuman and degrading
punishment and therefore in conflict with article 24 of the Constitution. The Supreme Court observed
that a decision that corporal punishment is constitutional or not meant construing the meaning of
art.24 in relation to s. 274 A Penal Code Act and that involved the interpretation of the Constitution.
The Supreme Court therefore held that ‘in as far as this appeal seeks for an interpretation of the
Constitution and for a declaration u/art. 137 (3) (a) of the Constitution that corporal punishment is
unconstitutional, it follows that it is the Constitutional Court, which has the original jurisdiction in
7
1966 E.A
8
Court of Appeal Civil Appeal no. 32/2002
9
Supreme Court Criminal Appeal no. 16/99

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these matters as the Court of first instance to consider and determine the issues raised by this appeal.
In Constitutional matters, this Court is an appellate court and cannot entertain and determine this
appeal as a court with original jurisdiction or a court of first instance.

4. Constitutional Conventions or customs i.e. accepted practices over a period of time. "People
decided to make written constitutions i.e. those formerly under colonial power to reflect and identify
the new sovereignty of the state, or an annexing power by incorporating the acquired territory, as a
result of revolutions to establish new regimes etc.”
The 'law of parliament' (especially parliamentary privilege)

The royal prerogative: "residue of arbitrary and discretionary authority left to the crown”.

Where there are unwritten Constitutions, Conventions are important e.g. in Britain, once the Prime
Minister loses the election he should resign. This, however, is not written. A Minister of the crown is
answerable to parliament and that a "government which ceases to command the support of the use of
commons must, either resign, or seek for a review. Such Conventions are not found in any law report
or statute but are enforceable because they are recognised.

5. Authoritative writings: Opinions of leading authorities in constitutional law. In unwritten

Constitutions, it’s not possible to ascertain some rules so in practice where there is a dispute over
rules, guidance is sought from books of authority. Similarly where there is a problem of interpreting a
particular clause in written constitution guidance, may also be sought from interpretation of leading
commentators on constitutions. "Uganda's constitution before 1962 was found in native agreements,
customs, orders in council, and legislature council ordinances.

6. International instruments: This is the last source of constitutional law. Uganda is a member of
the International Community of nations. We belong to a community with whole different practises
and rules among which are international instruments of which Uganda is a party, e.g. the Universal
Declaration of Human Rights (UDHR), the International Convention on the Civil and Political Rights
and the Convention on the Elimination of all forms of discrimination against women. Article 123 of
the Constitution provides that Parliament has the duty to make laws to govern ratification of treaties,
conventions, agreements or other arrangements for the same. The question however is, ‘How and to
what extent do these International Instruments apply domestically and what is their relevance to
domestic law?’

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 CONSTITUTIONAL CONVENTIONS

'Convention' was coined by A.V. DICEY, in his ‘An Introduction to the Study of the Law of the
Constitution, (1885)’

Rules are not enforceable in courts of law, since they are based on consent/acquiescence, rather than
enforcement. However, they are supposed to bind those to whom they apply, e.g. before 1945 it was
an unwritten convention that the United States President would serve for only 2 terms. Frenklin
Delano Roosevelt served 4, (partly because of the war)

Conventions are different from laws because the latter are enforceable by the courts, whereas
conventions are not necessarily laws therefore enforceable in the same manner. Laws are based on
some kind of enforcement machinery/sanctions, whereas conventions are grounded in consent and
acquiescence. But some writers suggest that this distinction is inaccurate, because;

Certain laws (e.g. parliament privilege) are not enforced in court, but in other fora (in parliament
itself)

Laws also depend on consent for their efficiency; if a sufficient proportion of people cease to have
acquisance in a law, and simply fail to observe it in all probability, such a law would not be enforced
and may lapse/have to be changed (e.g. drinking hours).

Though conventions are not enforced in courts of law, they are recognised by courts and in some
statutes.

The convention can be enforced by the institution that has designed it, e.g. Parliament.

CONVENTIONS IN THE COURTS

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Many decided cases have recognised the existence of conventions such that the decisions on the law
have been occasionally influenced thereby.

In the case of Liversidge v. Anderson,10 a man was interned (imprisoned without trial) during world
war II on orders of the Home Secretary empowered by regulations made under the Defence of the
Realm Act 1935 to intern persons whom he had 'reasonable grounds for having to be of hostile
organ/association', the man challenged this order on the grounds that the Home Secretary had failed
to inform him of the grounds of his belief. The House of Lords in the majority (Atkins in a famous
dissent) held that the regulations did not specifically require that the Home Secretary divulge his
reasons. That they only required that he should have such reasons. It was up to Parliament to require
him to explain his decision if they wished, in accordance with the Convention of ministerial
responsibility.

In the case of Carlton v. Commissioner of Works11 a civil servant issued an order requisitioning
plaintiff's factory. The Act of Parliament under which the order was purportedly issued empowered
the Commissioner (a government minister) to issue such orders. Plaintiff challenged the order on the
grounds that the commissioner neither had nor issued the order personally. The Court of Appeal held
that it was perfectly lawful for a civil servant to act on behalf of a minister for, as Lord Greme MR.
put it 'constitutionally, the decision of such an official is, of course, the decision of the minister. The
minister is responsible. It is he who must answer before Parliament for anything that his officials
have done under his authority'. Court recognised the Convention on Ministries responsibility.

CLASSIFICATION OF CONVENTIONS
Conventions are classified in four broad categories namely:
(I) Those that are related to the executive and they originate from the crown. They are executive or
royal prerogatives;
(ii) There are conventions from the cabinet i.e., Ministerial conventions and practices;
(iii) There are legislative or parliamentary conventions;
(iv)There are judicial conventions.

1. THE EXERCISE OF ROYAL (EXECUTIVE) PREROGATIVE:

10
(1946) A.C 206
11
(1943) All ER 500.

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This entails the following:
The sovereign should act on the advice of her/ his Cabinet (through the Prime Minister);
(ii) The sovereign should invite the leader of the political party which enjoys the support of the
commons to form a government;
The sovereign should appoint as Minister’s nominees of the Prime Minister;
The sovereign should always give her/ his assent to any bills presented to her by Parliament 12 unless
there is good reason to reject the Bill;
The sovereign should normally dissolve Parliament at the Prime Minister’s request;
The sovereign should exercise her/his prerogative of mercy upon presentation of petitions by
convicts.13

THE CABINET SYSTEM AND MINISTERIAL RESPONSIBILITY

Cabinet must be unanimous in advice to the sovereign and present a united front in Parliament.
(Rebels should resign rather than publicly disagreeing);
Government must enjoy support of majority of commons. If they cease to, the Prime Minister should
request for dissolution and call for a general election;
The Minister must accept responsibility for the authorised conduct of officials in his Ministry. He /
she must account to Parliament and protect such officials. If there is serious
misconduct/misjudgement, the Minister should resign.

THE HOUSE OF PARLIAMENT

A Minister must introduce financial measures in the House of Parliament;14
Members of Parliament should have access to question ministers through the Speaker;
All political parties would be represented (normally in proportion to representation in the House of
Parliament and in Parliamentary Commissions. The opposition should lead PAC.

THE JUDICIAL PROCESS

On-going judicial cases should not be debated in parliament or elsewhere (The rule of subjudice) e.g
Lukwago issue.
12
See article 91 (3) of the Constitution
13
Article 121 of the Constitution.
14
See article 93 of the Constitution.

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Judges professional conduct should not be criticised in Parliament except on a substantive motion.
This would amount to contempt of Court.

CLASSIFICATION OF CONSTITUTIONS

These are different ways of categorising constitutions. A constitution can be categorised in

accordance with its form and the type of government that is created by that particular constitution.

A: Classification according to form:

There is a distinction between form (Length, complexity, rigidity, i.e. mode of amendment)) and
substance (type of government)

There is a distinction between Written and Unwritten constitutions.

(1) Constitutions are said to be written when all legal rules delegating allocation of powers,
functions and structures of government are contained in one or more documents. Almost all
constitutions are written constitutions. On the other hand a constitution is said to be unwritten where
some of the fundamental laws are to be ascertained from sources other than one written document
e.g. the one of Britain.
(2) However, it is not correct to refer to an unwritten Constitution as ‘unwritten’ just because part
of the constitution comprises of written documents.
"It simply means that there is not one document or series of documents which can be claimed to
contain all the rules of the Constitution of the state. It means that there is a series of statutes, decided
cases, customs and conventions".

Advantages of a written Constitution

i) It will give you everything about the Constitution in one single document.

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ii) Usually the language, style or format will be uniform
iii) The principles and doctrines of a written Constitution are more likely to subsist and endure as
opposed to those of the unwritten Constitution. This is mainly because with an unwritten
Constitution and parliament as supreme body, such a Constitution can be easily amended by a
simple majority ie written Constitutions have continuity.

iv) Constitutions are written for benefit and common good of all citizens not for an individual or
group of individuals.

(3) Autocratic/Dictatorial constitution (one rule): Oligarchy (government a few people);

family/landed gently.

(4) Democratic Constitutions:

A democratic Constitution has the following characteristics:

-Recognises the political supremacy of the people;15

-Upholds the liberty of the individual;16
-Equality before the law.17

(5) Rigid and Flexible Constitutions:

The classification between the two relates to the methods by which the provisions of the constitutions
may be changed. A Constitution is said to be rigid if the method of amendment makes it deliberately
difficult to change the provisions of such a constitution. A rigid Constitution usually has
requirements such as special procedures for its amendment.

A rigid constitution usually requires majorities at Parliament and in other cases requires a referendum
whereby all who can vote are required to pass judgement for the Constitution to be amended. Rigidity
can also refer to whether a constitution can adapt itself to changing circumstances.

15
For example article 1 of the 1995 Uganda Constitution.
16
See article 23 of the1995 Uganda Constitution.
17
See article 21 of the 1995 Uganda Constitution.

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Rigid Constitutions are usually rigid because they are a result of negotiations and arguments over
strict allocations of powers and resources between different regions of the country. Regional
autonomy would be threatened if after all these negotiations, power is left to a national Parliament to
change easily. The U.S constitution is usually referred to as an example of a rigid constitution. It
requires that the constitution can only be amended by a motion passed by at least 20 of the members
of the congress of the U.S and it must be ratified by at least 20 of the State legislatures. Thus the
Equal Rights Amendment of the U.S Constitution failed. The amendment was seeking to eliminate
any difference between women and men within the law.

A constitution is said to be flexible, where its amendment can be done easily. In such cases one may
require that it be amended by a simple Act of Parliament. An example of a flexible Constitution is
the constitution of Britain. It can be amended anytime by Parliament. "It escapes the radical changes
which so frequently occur in rigid constitutional codes".

Flexible Constitutions are however, not many in the world. In most cases, most constitution provides
a mixture of both flexibility and rigidity. Many constitutions have entrenched clauses – (these are
clauses, which are singled out for extra protection and are made deliberately difficult to amend.) The
rest of the clauses may be amended easily.

Query, which are the entrenched clauses of the 1995 Constitution?

The constitution may adopt itself to new changes without seeming to be structurally altered formally
by changes not foreseen by the makers of the constitution.
When we talk about the rigid Constitution, we mean that the methods for amendment are relatively
more stringent. Rigid Constitutions are characterized by special procedures for amendment which
often take a long time and involve in high majorities either at the legislature or through a national
referendum. Flexible ones require a simpler process and have less majority requirements. The second
feature of a rigid Constitution is the feature of entrenched clauses ie clauses beyond amendment
which have been singled out for special protection. As opposed to rigid Constitution, flexible
Constitutions are easy to amend. The best example is the United Kingdom Constitution because it
needs a simple majority for amendment. In general countries have favoured rigid Constitution. This
is because:

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a) of the need to provide checks and balances over the allocation of power and resource between
different organs of the state.

b) where you have a diversity of people or a large country and the issue of regional interests is
an important one, you will then have a federal Constitution and under this Constitution, the
Constitution will be made rigid in order to protect the regional autonomy of the federal units
and to ensure that the central government does not override those special interests arbitrarily.
For this purpose therefore, the United States Constitution is considered a rigid Constitution
because it cannot be easily amended.

c) Countries also need a rigid Constitution to protect young and growing institutions of
government or where there has been a violent history characterized by abuse of people’s
rights and freedoms or civil conflict and war.

Query, how would you classify the 1995 Uganda Constitution, especially with respect to the
provisions in Chapter 18?

(6) General and detailed constitutions.

There is a distinction between the two types of constitutions. A detailed constitution is one, which
has detailed rules about allocation of powers, functions and resources. It also incorporates detailed
rules on the relationship between an individual and government. It endeavours to cover every aspect
of these laws, in minute detail.

On the other hand a general constitution is content with establishing a general framework for
governance. It just lays down the main principles of fundamental laws.

c, Classification by type of government created by a particular constitution.

Classification of a Constitution by type of government means the way political powers is distributed
among different organs of government by the Constitution itself. political power organisation,
control & distribution.

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There may be various types of governments, but for purposes of classification, the following findings
or indicators are usually taken into account:-

-How many people participate in the top decision making organs of government.
-What type of ruler is created by a particular democratic, absolute monarch etc.
-Actual distribution of power between organs of government or different players of authority.
-Distribution/relationship between the legislature and executive may also lead to different
classifications.

Constitutions, which emerge from this type of government, include Democracies and dictatorships.

There are distinctions between a democracy and a dictatorship and these include:

(7) A dictatorial Constitution confers absolute power on the ruler who rules without reference to
people or any other organ. He or she does not subject himself to an electoral process and does not
tolerate opposition. He normally uses force to suppress any form of opposition.

(8) Democratic constitutions have a system of government in which the people participate in
decisions that affect them. A democratic constitution may have other characteristics, such as:
Systems where people in control of the affairs in government are elected by the people

A form of society in which there is no privileged class of people in as far as ascendancy to political
positions is concerned and therefore, in such societies individuals rise to positions of power by virtue
of open competition and/or ability.
A term that conveys an idea of equality, democratic opposition, individual rights, concern for the
common people and tolerance, as neutral administration of justice as well as freedom of thought and
expression, i.e., democratic opposition.

Benevolent dictator.

The USA, Russia, UK, UG, KY, & TZ are all democratic or at least so they claim. Yet their
governments differ fundamentally which means democracy is a term capable of shape and meaning.
The real point is how democratic you actually are and depends to a remarkable extent on who is
asking the question and who is answering.

19
(I) Principles/Components of Democracy, Popular, Representative and Participatory.

Originally democracy was a concept of the Greek way of governance. In ancient Greece, it was said
that the country practised the best democracy. All citizens could meet and deliberate on affairs that
affected them.

Today’s democracy generally refers to representative democracy, i.e., people participate through their
duly elected representatives. This implies the following:-

Election

People acquire positions through elections, i.e., one-person one-vote system. This infers equality
between people. The system of election must guarantee fairness and freedom of choice i.e. no
intimidation and undue influence.

Periodic elections.

These enable people to re-assess the leaders they have elected.

Equality.

In terms of opportunity and facilities. There should not be discrimination according to race, sex,
tribe, religion, political opinion, sexual preference etc.

Some principles of democracy have been laid down in the 1995 Constitution. See Arts. 21 (1) & (2)
and P. 2 of the Constitution on ‘the state shall be based on democratic principles’.

(9) Federal and Unitary Constitutions.

Before one determines whether a Constitution is federal or unitary, there is need to study the
distribution of powers of government between the sovereign state and autonomous local authorities

20
within the sovereign state. The degree to which regions enjoy powers will determine whether the
Constitution is unitary or federal.

In a Federal constitution, more powers are given to local authorities than to the central government
and in a Unitary Constitution, there are no powers given to local authorities etc but to the central
government for the good of all. The key question is the degree of autonomy enjoyed, the structure of
government, and how power is derived and distributed (cf. Arts. 189 and 202; 5 th and 6th schedule,
and also 176, 178).

In essence a federal or unitary constitution is about sharing executive, legislative and judicial powers.
It presupposes that there is a central government and other local authorities within the country.

(a) Federal Constitutions:

A federal constitution is usually a result of a number of factors:-

Cultural considerations:

Where ethnicity/nationality infers that a country has divergent cultures i.e. customs, lands and
religions. There is usually an argument for having a federal structure. Everyone can protect his or her
cultural values unlike in unitary constitutions. Canada's federalism was as a result of this and so was
Nigeria's, Switzerland, USSR and Brazil.

Size of country:

Where a country is vast, there may be difficulties for the central administration to have effective
planning and control over the remote areas of the country. There is always the argument that the
country should be broken up into autonomous self governing regions which can be able to be ruled
easier e.g. Australia, India, U.S.A. (Sudan and DRC may need it).

Historical Factors

21
Where a country was by an accident of history formed out of sovereign states, then on attainment of
independence there is usually a compromise to have a federal constitution to cater for the original
states.

Geographical Considerations

When a country is composed of many geographical differences, it can be hard to govern e.g. a
country with many scattered islands e.t.c.

(I) The first general characteristic of a federal constitution is that powers are distributed between
central government and local authorities. These powers are distributed by the constitution itself and
any violation of these powers can lead to a constitutional crisis.

Powers are stated in any of the 3 ways:-

The constitution can provide for a list of functions/powers, which will be enjoyed by the central
government. In such a case it is implied that the rest of the powers not mentioned in that list are then
for the local authorities.

The constitution may provide two lists i.e., one which states what the central government can do and
another that stipulates what the local authorities can do with a clause that caters for any powers not
mentioned.

The second general characteristic of Federal system of government as stipulated in Odoki reports [pp
239 (9.31)] is that in Federal systems of government the national constitution will be present and then
each state will also have its constitution. In all cases the state constitution should never contradict the
national constitution.

Each state has a fully fledged government i.e. legislative, executive and judicial bodies.

The powers to raise taxes may be shared between the national government and the federal states. The
federal taxes will be clearly stated in the Constitution.

22
Federal constitutions usually provide for bi-cameral legislatures [legislatures which are composed of
2 district bodies e.g. in U.S., members are elected equally on equal representation. But in congress
(the lower- house) elections are according to the number of people in each state. This is to provide for
equality i.e. having both senate and congress.

A Federal constitution requires elaborate procedures for amendment. There is usually a clause, which
requires that any powers must be approved by the federal legislatures. In federal governments, the top
federal courts are usually concerned with constitutional matters. All other matters are left to the state
courts.

A Federal government always provides for a neutral territory as the national capital.

MAIN DISTINCTIONS OF A FEDERAL CONSTITUTION V UNITARY

1. Generally speaking the main characteristics of a federal government relate to the way in
which power is distributed and there is often a clear demarcation as to what type of powers
can be exercised by the federal government and those to be exercised by the different regions
so that there is a distribution of power and any violation of the distribution can have grave
Constitutional consequences.

There are different ways in which federal Constitutions may achieve this distribution:

i) To list the powers of the central government and by implication those powers not
listed will belong to the states

ii) The Constitution may provide the reverse ie if it states the powers of the local
governments, by implications, the powers so left are for the centre.

iii) To list the powers of both the centre and the regions and then state that any
undistributed power shall be dealt with in a specified manner.

2. The second characteristic of a federal government is that rather than having a single
Constitution, each state has its own Constitution as well as a central one. So each region is
ruled upon its own Constitution but the federal Constitution draws the boundaries.

23
3. Usually federal Constitutions stipulated elaborate procedures for amendment. These are
usually difficult to amend.

4. Federal Constitutions always make provisions for a neutral territory to be the national capital.

(b) Unitary Constitutions:

Unitary constitutions provide for a central and unified system of government whereby all powers of
government are vested in one central government without any limitations. In such a system there will
be no other governments or local authorities, which derive powers from the central government. All
powers given to such local governments, if they exist at all, are so given by the central government
and they can generally be taken away by the central government without infringing on any provisions
of the constitution. See the provision of the 1995 constitution sixth schedule.

General Characteristics of Unitary Constitutions:

(I) A Unitary constitution is a single constitution incorporating all powers in regard to the whole
country and gives the power to different organs etc. There is no other constitution that can be referred
to in the system of governance.
In a unitary constitution all powers are concentrated within the central government. All powers and
functions of local government are determined by the central government. Central government organs
like executive, legislature and judiciary may at any time limit those local government powers.

Why would one opt for a unitary constitution rather than a federal one?

A unitary system is claimed to have certain advantages in contrast with the federal type and these are:

Unitary constitutions tend to be more flexible in terms of amendment. There is usually no

requirement to consult any regional assembly so as to have the constitution amended.
Unitary constitutions lead to maximum exploitation of all national resources, both human and
material. In unitary systems there is free flow of labour but in Federal ones there may be restrictions

24
in regard to where one works and because of the restrictions in the labour network, resources cannot
flow easily.

Unitary constitutions lead to uniformity in decision making.

The question of social and economic development is planned uniformly for the whole country with a
conscious attempt taking into consideration the different needs of the people. Theoretically therefore,
there is a rateable distribution of resources.
It promotes a uniform national identity, i.e. the idea of one people, one nation, one institution and a
national culture.

A unitary constitution is less costly to manage and maintain. Federal systems are generally expensive
to maintain because of the several organs. The costs of maintaining such a system cannot be
overestimated.

However, unitarism can have its disadvantages, e.g.

 Unitarism may lead to a concentration of resources at the centre and the other regions feel
neglected;
 There can be gross mismanagement of the system because of lack of checks and balances at
the centre to check on corruption, etc.
 There are tendencies of increased corruption in unitary kinds of governance.

Another classification as to type of government is classification according to the political system that
exists i.e. multiparty or one part or no party.

10. Republication Constitutions and Monarchical Constitutions:

Constitutions may also be classified according to the method by which the political head of state is
elected or appointed. Constitution may be monarchical or republican. A constitution is said to be

25
monarchical where the head of state is not elected to office but becomes head of state by virtue of
birth. He / she assumes office by virtue of his/ her lineage/birth.

Here, the head of state usually succeeds either his father or somebody within the limited royal line.
A monarchical constitution may vary from one country to another both in form and the powers,
which are granted to the monarchy. A monarchy may be constitutional or absolute. A constitutional
monarchy is that which rules according to the terms of an established written constitution. Its roles
and powers are set out in the constitution. It usually limits the powers that may be enjoyed by the
monarchy. In such constitutional monarchies the head of state usually does not have executive
powers. The executive powers are usually left to be exercised by elected leaders e.g. in the British
monarchy and most modern monarchies. A monarchy may also be absolute. This is one, which rules
without reference to democratic institutions. He has all the executive, judicial and legislative powers.
Right now there is hardly any absolute monarchical country.

(a) Positive attributes of a monarchy.

The monarchy is looked at as the embodiment of the nation and is usually a unifying factor as far as
both domestic and international affairs are concerned. A monarchy by its nature usually avoids
partisan politics and there fore, it becomes acceptable if not to all, at least to the majority of the
people.

A monarchy can be used as a tool for mobilising all resources in the government for development
purposes. Because it is not political, its views, opinions and recommendations are usually not treated
with suspicion.

Monarchies tend to preserve culture and cultural institutions so they promote the positive cultures
among the people. Monarchies tend to avoid conflicts and struggles over leadership because nobody
aspires to rule unless God has ordained it.

(b) Negative aspects of monarchies.

People are not given an option to reject a particular leader. There are no elections etc, he/she rules
till he dies.

26
Some monarchies tend to be arbitrary and dictatorial if there are no strong democratic institutions to
check them. Monarchies tend to be parasitic in that they live on the sweat of the population without
contributing to the work. E.g. the British Monarchy.

Monarchies also negate the idea of equality of persons. Some get privileges and others are denied by
virtue of their birth. Because of its nature i.e. royalty calls for obedience, there is no transparency and
accountability.

A republican constitution on the other hand is a system whereby the people elect the leaders and the
people are able to change their leaders. It emphasises equality of all persons and de-emphasises
special privileges, titles, traditional rights etc. All persons are deemed to be equal and subject to
satisfying the constitutional request. All persons are legible to hold government positions at all
levels.

Advantages disadvantages of movement system, multiparty, and mono parties

CITIZENSHIP

A citizen is one who owes allegiance to his country by virtue of the fact that he is a citizen. The term
‘citizenship’ defines the nature of the legal relationship between a particular individual described as a
citizen and a sovereign state. It is the continual legal relationship between the citizen and the state.
Citizenship connotes the idea of a particular person belonging to a particular state. Nationality
usually means a common ancestry, language, colour and culture and at times religion. It may also
refer to an ethnic group within the state or across many states. It (essentially refers to the racial ethnic
dimensions, common ancestral origin, similar language, colour/cultures.
Citizenship also implies rights and duties of all individuals towards the state and in the same way it
also means the duties of a particular state towards the individual. The issue of citizenship empowers
the citizen to demand protection and promotion.

Why is citizenship important?

(a) Allegiance

27
It is important because it decides where a person owes allegiance. She owes it to where she feels she
belongs and not necessarily where she stays. It is different from domicile/ nationality
(b) State Protection

Citizens derive their protection from their States and it is a cardinal duty of any state to protect
people within the country and more so its citizens. The constitution in many aspects treats citizens
and non-citizens differently. There are some countries, which extend protection of its citizens beyond
the territorial limits of the country. This protection beyond the borders is a concept recognised in
international law and foreign policy e.g. foreign embassies, ships and aircraft’s.

(a) State responsibility to its citizens

In international law, state responsibility means the international responsibility of a particular state in
its transactions or in matters, which affect other states. The state may be held responsible in the way
it treats its citizens, especially under international human rights law and practice (ICLPR).

(d) Freedom of movement

Citizens are usually accorded freedom of movement within the country subject to national security.
They can go and live and settle in any part of the country with no bar to any residence in the country.
In addition, a citizen has the right to leave his/ her country and the right to return, and a right to a
passport. This freedom can be restricted with regard to non-citizens.

(e) Citizenship may also be important in criminal proceedings. There are certain offences, which
can only be committed by citizens of a country. E.g. treason. Besides, at law, a country is entitled to
go after people who are its citizens wheresoever they may be if they have committed a crime against /
in their country. When a person commits a criminal offence in a country where he is a citizen, but
runs away to another, she is brought back (extradited) to his/her country to be tried. The countries
involved however must have extradition agreements with each other.

(f) Jurisdiction over individuals

28
Apart from extradition, citizenship may also determine other aspects of jurisdiction. There are some
countries, which make it an offence for any person to harm any of its citizens wherever they may be
e.g. Israel.

(g) Rights of the individual

There are some aspects of human rights which are enjoyed by citizens as opposed to non-citizen e.g.
right to stay and return to Uganda, political rights, right to register, vote, contest for position,
education, land etc.

The question of citizenship might also be important in the area of identifying duties of individuals. If
one fails it can only be proved if he is a citizen e.g. voting etc. Art 17 and National Principles.
XXIX;

(h) For the determination of the phenomenon of duties, e.g. the duty to vote, the duty to obey the law
of the land. Also see the duties in para 29 of the National duties of State Policy in the 1995
Constitution;

(I) In situations of a civil break - down in the country the question of citizenship may also arise in
regard to who qualifies for a particular country’s protection. An example is the USA that extends its
protection in times of inter alia civil strife, whenever they may be. This may lead to external or
internal refugees.

According to the Convention on the Reduction of Statelessness, 'No person should be rendered
stateless'

Determination of rights of the community/group/ethnicity in the wider collective (non-discrimination

e.t.c) self-determination.

29
It is nevertheless well to remember, that the right to petition against a violation of the Constitution or
any of the rights contained therein is not confined only to citizens (see: Uganda Law Society &
Justine Semuyaba v. AG.18)

Problems associated with ascertaining citizenship:

(a) Colonial borders: It’s hard to tell who is who because these borders cut between tribes. Some
people of the same tribe but were separated by borders.
(b) Migration across other borders: It's difficult to deny a person citizenship because he happens to
be from another country.
(c) Problem of refugees: It can be hard to differentiate between a refugee and a citizen.

The Process of determining citizenship.

Under international law, the question of citizenship is left to the individual states, for international
law recognises only one principle, ‘No one should be stateless- everyone has a right to be a citizen’.
However, the details of determining who and how one can gain citizenship are a matter that has to be
determined by the municipal law of a particular country. Each individual country therefore decides
on the rules of ascertaining citizenship.To ascertain a person's citizenship one has to look at the
various laws contained in a country. These laws usually include:

(a) The Constitution;

(b) A citizenship Law / Act, Cap. 58;
(c) Immigration Laws;
(d) Residence Laws;
(e) Refugee Laws.

Countries may also provide for different categories of citizenship. The 1995 Ugandan Constitution
provides for different categories of citizenship, i.e. ways by which citizenship may be ascertained:
(I) Everyone who was a citizen upon the coming into force of the constitution will continue
to be so;

(II) Citizenship by birth: art. 10;

18
Constitutional Petition. No. 8 of 2000

30
There are two types under this category,
(a) Every Ugandan born individual with at least one parent/ grand parent, who is / was a member of
any of the indigenous communities resident in and existing in Uganda from February 1, 1926.
Those indigenous communities are contained in schedule 3.
(b) Those people whether/ not born in Uganda, whose parents or at least one of such parents is / was
a Ugandan by birth;

(III) Citizenship by registration, art. 12;

At the time of one’s birth, neither his / her parents were a diplomat / a refugee but who has lived
continuously in Uganda since independence shall on application be entitled to citizenship by
registration. The exclusion of immigrants, refugees and diplomats is perhaps because they can always
go back home.
Other categories under the above include:

(a) Anybody married to a Ugandan citizen for at least three years in a legal and subsisting marriage;
(b) A Legal and voluntary migrant who has lived in Uganda for at least 10 years / such other period
as Parliament may prescribe;
(c) Every person who when the Constitution came into force has lived in Uganda for at least 20
years, i.e. from August, 10, 1975;

Citizenship by naturalisation Art 13:

This is when a person acquires citizenship by long and sustained association with Uganda. It requires
a long period of residence and allegiance to the country. This person should be able to prove that he
is sufficiently acquainted with conditions in the country including its customs, local languages etc.
The other law governing this type of citizenship is the Uganda Immigration and Citizenship Act.

Citizenship by presumption:
The 1995 constitution introduces one aspect where a person can be presumed to be a citizen unless
the contrary is proved.

(a) Art 11-A child of not more than 5 years of age whose parents are not known shall be presumed to
be a Citizen;

31
(b)A child of less than 18 years neither of whose parents is a citizen, who is adopted, by a citizen
may be registered as a citizen of Uganda.
Kawalya Kaggwa;
Singh v. Kulubya;
Unity Dow.

Loss of Citizenship

There are some international principles, which are followed in protecting citizenship:- e.g. No
Constitution, should render a person stateless. However, municipal law usually provides various
ways through / by which citizenship can be lost. Art 14 as amended by S. 5 of Act 11/2005.

(a)Voluntary service in the armed force of another country which is hostile to the home country or at
war with the home country;
(b) Citizenship acquired fraudulently;
(c) Espionage (Sabotage) against the home state.
These apply to those who acquire citizenship by registration. The Constitution also establishes the
National Citizenship and Immigration Board whose functions are prescribed by Parliament 19 under
the Uganda Citizenship and Immigration Act.

Unresolved issues in the citizenship debate:

(a) Restrictions to non-citizens (Immigrants, Refugees)

Right to Education. There is however an agreement between UNHCR and the Office of the Prime
Minister dealing with refugee matters and representing Uganda to the effect that refugees are entitled
to the same right to education as nationals and where they are required to pay for it, such payment to
be at the same rate as that of nationals.

(b) Indigenous Community (schedule 3)

Definition should be more precise and not arbitrary/politically circumscribed. There is a proposal to
add five new communities, i.e. Aliba, Barundi, Gimara, Reli and Shana.
19
See article 16 as amended by S. 7 ( 4) of Act 11/2005

32
(c) Citizenship for Refugees on the Commencement of 1995 Constitution.
Refugees (especially Rwandese) who have gone home.

Duties of a citizen (from Constitution)

1. All citizens of Uganda have the right and duty at all times to defend the Constitution and in
particular to resist any person or group of person seeking to overthrow the established
constitutional order20. This right and duty was re-echoed in the case of The Uganda Law Society
& anor v. AG21, where the Constitutional Court held that Citizens have a duty to defend the
Constitution from any violent or the unlawful means of change other than by the procedure
provided for in the Constitution;
2. Citizens have a further duty to do all in their power to restore the Constitution after it has been
suspended, overthrown, abrogated or amended contrary to its provisions;22
3. To respect the national anthem, flag, coat of arms and currency23;
4. To respect the rights and freedoms of others;
5. To protect children and vulnerable person against any form of abuse, harassment or ill-treatment;
6. To protect and preserve public property;
7. To defend Uganda and to render national service when necessary;
8. To cooperate with lawful agencies in the maintenance of law and order;
9. To pay taxes;
10. To register for electoral and other lawful purposes;
11. To combat corruption and misuse or wastage of public property; and
12. To create and protect a clean and healthy environment;
13. All able- bodied citizens to undergo military training for the defence of the Constitution and the
protection of the territorial integrity of Uganda whenever called upon to do so;
14. To be patriotic and loyal to Uganda and to promote its well-being24;
15. To engage in gainful work for the good of that citizen, the family, the common good and to
contribute to national development;

20
Article 3 (4) (a) of the Constitution
21
Constitutional Petition no. 8/00
22
Article 3-(4) (b) of the Constitution.
23
Article 17 of the Constitution.
24
National Objective no. 29 of the National Objectives and Directive Principles of State Policy.

33
 16. To contribute to the well-being of the community where the citizen lives;
17. To promote responsible parenthood;
18. To foster national unity and live in harmony with others;
19. To promote democracy and the rule of law; and;
20. To acquaint himself or herself with the provisions of the Constitution and to uphold and defend
the Constitution and the law.

Refugees and Immigrants:

Immigrants are persons who have either voluntarily / not left their original country of abode and seek
to set up a connection with another country. There are various categories of immigrants:

(I) Legal (Voluntary) immigrants who want to sever their ties with the home state and set up house in
the country to which they have immigrated.

(ii) Legal (voluntary) temporary immigrants who are moving to another country for a specified
reason, e.g. studies, work etc. and will live in that country for a specified duration until the issue for
which they are in the country has been accomplished.

(iii) Illegal immigrants: persons who do not utilise the proper /official channels of
entrance/migration to another country, but end up staying there for a period of time.

Refugees:

Very closely related to the above, according to the Convention Relating To The Status Of Refugee,25
and the Protocol thereto,26 a refugee is any person who owing to a well-founded fear of persecution
on grounds of race, religion, nationality, membership of a particular social group/political opinion is
outside the country of his nationality and is unable / owing to that fear, is unwilling to avail himself
of the protection of that country; or who not having a nationality and being outside his former
habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to
it.27 The OAU Convention Governing The Specific Aspects Of Refugee Problems in Africa 28 does

25
Of 1951
26
Of 1967
27
Article 1 A (2) Of The Convention
28
Of 1969

34
recognise the definition accorded to a refugee in the 1951 UN Convention but goes on to identify
another group of refugees who ‘owing to external aggression, occupation, foreign domination or
events seriously disturbing public order in either part of the whole of his country of origin or
nationality, is compelled to leave his place of habitual residence in order to seek refugee in another
place outside his country of origin or nationality.29

The Rights of Refugees:

There is a fundamental importance of the observance of the principle of non- refoulement both at the
boarder and within the territory of a State- of persons who may be subjected to persecution if
returned to their country of origin irrespective of whether or not they have been formally recognised
as refugees30 Expulsion only on grounds of national security, but even then, efforts should be made to
secure a country of asylum for the ‘asylum seeker’. Refugees should only be voluntarily returned
(voluntary repatriation).

Besides the general International and national 31 human rights Instruments that seek to promote and
protect ‘every one’s human rights, there are specific instruments that deal with the protection of the
rights of refugees in their country of asylum and these include:

The Convention Relating to the Status of Refugees 32 and the OAU Convention Governing The
specific aspects of refugees 33identify the following rights inter alia:
(i) Freedom from non-discrimination. They are entitled to equal treatment as other foreign
nationals;
(ii) Freedom of worship;
(iii) Exemption from reciprocity;
(iv) Exemption from exceptional measure;
(v) Respect for personal status. They are entitled to the respect of the rights acquired through
marriage and other personal laws;
(vi) They are entitled to the right of non- political association. They are not allowed to set up
organizations with political motives;
29
Article 1 (2) of the Convention. This group is commonly known as prima-facie refugees.
30
Ex Comm Conclusion no.6 of 1977 of the 28th Session. Conclusion adopted by the Executive Committee on
the International Protection Of Refugees.
31
For example, the Bill of Rights in the 1995 Constitution of Uganda does spell out certain rights that can be
enjoyed by all, irrespective of whether or not they are citizens, for example, freedom from torture, entitlement
to the writ of habeas corpus.
32
Of 1951, Articles 3-34
33
Of 1969, Articles iv- v

35
(vii) They are entitled to access of courts of law and due process ( equal treatment)
(viii) Protection of Property;
(ix) Protection of artistic rights and industrial property;
(x) Protection of the freedom of movement, the choice of residence subject to the same
conditions as foreign nationals;
(xi) They are entitled to the same treatment as foreign nationals with regard to the right of
employment and especially to exorcise the libel professions;
(xii) With regard to food rationing, they are entitled to same housing as foreigners;
(xiii) They are even entitled to some elementary education as nationals and to higher education like
foreign nationals;
(xiv) They are subject to labour laws and regulations;
(xv) Facilitation of nationalisation.

GENERAL PRINCIPLES OF CONSTITUTIONAL LAW:

There are some general principles of constitutional law which are initially accepted as being part and
parcel of a good constitutional system and these principles are incorporated in constitutions through
various ways. They may be expressly incorporated or may be inferred in the effect of some clauses in
the constitutions:-

1. Rule of law;
2. Separation of power;
3. Fundamental human rights and freedom;

36
4. In some cases sovereignty of parliament.

(a) THE RULE OF LAW

The origins of the notions of the rule of law came from Prof. Albert Venn Dicey in his book ‘The law
of the constitution, 1885’. He argues that the doctrine rests upon two fundamental principles and
these are:
(i) Government must be one of rules/ law and not one of a man.
(ii) The rule/Supremacy of law.

But there is much more to that in regard to the definition.

The term ‘rule of law’ springs from the concept whereby "if I am subject to another person, then I am
at the mercy of his whims and passions, his anger and his prejudices. But if we are both subject to
the law, then the personal factor is taken out of politics. By subjecting everyone to the law, we make
ourselves, in a sense, equals.” All persons must subject themselves to the law. Officials, police, the
masses, (even when they think they're acting in the public good) must all be subjected to legal
constraint. The powers of government must be exercised in accordance with the law and must be
conditioned by law i.e. government subject to law. This concept can be traceable from the theories of
natural lawyers. Montesquieu, Roseau are some of the natural lawyers who believed that man has
rights and it is the duty of government to protect those rights. In England this concept of the rule of
law was popularised and expounded upon by Prof. Dicey. According to Dicey the rule of law
essentially has 3 meanings which are all applicable:-

(I) The rule of law means the absolute supremacy or predominance of regular law as opposed to
the influence or arbitrary exercise of power (discretion);
(II) Rule of law also means equality of all citizens before the law. There should be no
discrimination against some people or privileges for others;
(III) Rule of law means that the law of the constitution is the consequence of the rights of the
individual, but not the rights of the individual, which are inherent.

The rule of law involves moral compulsion and is often used as a guiding principle by critics of an
excessive official action.

37
Dicey argues that the decisions of judges have given birth to human rights and that no one should be
subjected to ill- treatment except by law as passed by an established parliament.

To him, government must be one of rules / law and not one of man. The law is the supreme
instrument over government. But there is much more to that in regard to the definition.

Is the rule of law an unqualified human boot or simply a device for the wealthy dominating and
calculating to retain the rule of society? What does rule of law mean and of what value is it today?
Is it any more than a statement that individuals/officials should obey the law as it is? Or is it a
guide to the morality of our institutions and a constraint for work for government and all public
administration? Or is it a proper place not is the realm of constitution legality in the theatrics of
liberal - democratic values?
To E.P. Thompson, WHIGS AND HUNTERS in his THE ORIGIN OF THE BLACK ACT (1975) P.
266), it is an 'unqualified human good.' And to M. HORWITZ, a device that 'enables the dominant,
calculating and the wealthy to manipulate its form to their own advantage' p. 58.

According to Dicey, the rule of law basically means:

1. Individuals should not be subjected to wide discretionary powers. State officials should not be
able to do everything at their own discretion. To him, such would lead to arbitrariness. So, the
discretion must be exercised judiciously ( fairly) and with no discrimination/ unequal treatment;
2. The element of equality of all people before the law must be present. All classes of people
regardless of colour, creed, religious belief should be treated in the same way;34
3. Applying particularly to unwritten constitutions, the judicial arm of government is the organ with
the power to ensure that the rule of law is observed and enforced.

Rule of law is equal to three things:

(i) Individuals should not be subjected to wide discretionary powers. Wide powers are equal to
arbitrary power;
(ii) Equal subjection' of all classes of people to one law administered by the order of Acts;
(iii) Individual decisions should determine the rights of individual citizens.
Are these view/elements necessarily correct?
34
Also see art.126 (2) (a) of the 1995 Constitution of Uganda.

38
Many scholars have attacked Dicey:

Leiser - faire (capitalist) liberal;

Unfettered state regulation;
Other agents of ROL (apart from citizens) which determine the relationship between the state and the
citizen; Positivism; The rule of bad law.

THE QUESTION OF THE APPLICATION OF THE RULE OF LAW:

The most articulate statement on the rule of law in modern times has come from the International
Conference of Jurists ( ICJ) WHICH IS AN International NGO devoted to human rights and based in
Geneva.
In 1959, the ICJ issued a statement considered to be basic to the rule of law. It contained the
following principles, inter alia:
1. There should be a strong and effective government and by this:

(b) One that can maintain law and order throughout the country and command the obedience of all
decisions;
(c) The citizens in the country should be able to pursue economical, political, social and other goals.

2. There should be a government of law, to the effect that in exercising its powers, all the arms of
government must operate under the power of the law and must be governed thus. In exercising its
power, this should be in trust of the citizens and so, it should act in their interest.

3. There should be equality of all people before the law and the law must be equally applied to all
irrespective of race, colour, sex, status, etc.

4. The Independence of the Judiciary should be respected and there are a number of components of
this:

(a) The nature of appointment must guarantee the greatest possible election of judges;
(b) Judges should be capable and honest;

39
(c) Judges should have the merit and should be qualified to read and interpret the law as a basic
qualification. Usually, this system of election should ensure that the people qualify. In Uganda, it
is the Judicial Service Commission that appoints Judges / Justices.35
Under the doctrine of the independence of the judiciary, there must be security of tenure for the
judicial officers. Once appointed, Judges should not be removed. There is a process that must be
followed.36 The retirement age of the Judges is usually higher than that of other public officers,
ensuring maturity and fearlessness;
(d) There should be adequate remuneration for the judges. A living wage and not an earning wage
should be paid with all the facilities necessary to ensure that they are comfortable and there is no
interference from the outside.
5. There should be respect for basic and fundamental human rights. The law must recognise and
declare the human rights of individuals. These are the civil, political, economical and cultural
rights. In most constitutions, these rights and contained in a separate cap or bill. In the 1995
Uganda Constitution, it is cap. 4. It is not enough to declare human rights but effective machinery
is necessary like the courts and the Uganda Human Rights Commission, a body charged with the
enforcement of all freedoms of all Ugandans.

6. The rule of law is concerned with ensuring that there is a representative government and this is
usually done by an election, which is free, fair and democratic. It also means that the people can
democratically change their government;

7. The rule of law also means a fair and impartial trial guarantying due process, meaning that all the
principles of natural justice are adhered to.

8. The rule of law also entails adequate systems governing organs and people of the government.
The law governing them should be transparent and effective and that the public officials should
be rendered accountable for the abuse of office/ the denial of people’s democratic rights;

9. The rule of law also demands adherence to International law, i.e., and International law overrides
national law.

35
See article 146-151.
36
See article 144 of the Constitution of Uganda.

40
10. The rule of law also demands respect of social affairs and their recognition and that people’s
rights should be protected and promoted.
Look at the case of Pedro V. Constable Diss (1981) 2 All Er 59.

THE DOCTRINE OF SEPARATION OF POWERS:

The most direct expression of the principle in modern constitution law can be found in Article 16, of
the Declaration of the rights of man, 1789;

"Any society in which the safeguarding of rights is not assured, and the separation of powers is not
observed, has no constitution".

A classic formulation is to the effect that the three distinct functions of government should be
discharged by three separate agencies and that no individual should be a member of one and the other
(Compare with the 1995 Constitution)

The doctrine is fairly dated and its first normative expression is based on the assumption that
concentration of powers in one person or one organ of government usually leads to tyrannical rule.
This theory was championed by a French philosopher, in his book THE SPIRIT OF THE LAWS,
1878 that when the legislature and execution powers were united in the same person. To him, any
infusion leads to tyrannical and arbitrary government. His argument was that in order to protect the
individual from tyranny of government there is a need for the 3 separate organs of government to be
separate from each other in terms of powers and in the way the powers are exercised. According to
him government is made of the executive, the judiciary and the legislature. These three should be
separate. His basis was the French government at that time whereby all the powers were
concentrated in the monarchy - and this was leading to tyranny. The French Government enjoyed
absolute power. Montesquieu contrasted the French system of government from the British one. He
believed that the British constitutional arrangement had the concept of separating of powers in
practice. Montesquieu said separation of powers essentially means 3 things.

(i) Different people should operate each of the organs. In other words, no one single individual
should belong to more than one organ;
(ii) Each of the organs of government should be independent/ autonomous of the other;
(iii) No one organ should undertake and exercise the functions of any of the others.

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In summary, the doctrine of separation of powers is about the three organs of government exercising
three powers of government in independence/ autonomy of any other. This is also called the doctrine
of pure separation.

The American constitution is usually cited as one, which separates the powers.

a) All executive powers are with the President of U.S.A.

b) All legislative powers, with the Congress and the Senate.
c) All judicial powers are with the Supreme Court and other courts of law.

But of course, not even here can we say that the doctrine has been applied in totality (for example see
President Clinton’s trial where the Senate exercised Judicial Powers.)

The US system separates personalities and members of cabinet (executive) are not members of
congress and they cannot sit as judges in courts. The Congress only exercises the legislative functions
but the President has to assent to a bill before it is passed into law. The President is elected separately
from congress at a separate election.

The Supreme Court of the US is only concerned with protecting the constitution so it can overturn a
decision of the executive or can overrule a legislation i.e. if it is in conflict with the constitution.

In many other countries like England, the doctrine of separation of powers is much less defined. In
England, the Chief Lord Justice is by virtue of membership of the House of Lords, a member of the
Legislature and also a cabinet member. No modern state exercises pure separation of powers. Rather,
they operate a system of checks and balances which is a modification of the doctrine and it is
designed to ensure that each organ of the state enjoys a balanced relationship with the other and that
none of the organs are capable of exceeding their powers. To borrow the words of Odoki J:

“Although the roles and the responsibilities of the main organs of the state are far
different, they are also closely connected. None of them can work properly by itself. They are like
three stones and a cooking pot, each playing a distinct role but always in co-operation with each other
so that if any one of them is removed, the pot collapses”

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So, each of the organs has a distinct role and purpose, but the main idea behind checks and balances
is the prevention of the exercises of monopoly in powers. The other objective / advantage of the
doctrine of separation of powers is that it creates efficiency, bringing with it a cadre of Officers who
understand their work and experienced experts in their fields , thus creating efficiency.

More still, the doctrine aims at creating opportunities and spreading access and input from the
different individuals in the different classes.

The doctrine of checks and balances basically means that although separate, they should nevertheless
operate in relation to one another. As the representative of the people, Parliament should have the
right to interfere or intervene where the Executive policies are detrimental to the welfare of the
community because they are the voice of the people- the constituency and so should be able to act as
the bafour. Because of this, Parliament should be empowered to drop out the Executive through a
Vote of no Confidence or it can express its displeasure with it for they operate for the needs of the
people and this will help tame the Executive.

Under the system of checks and balances, courts have the duty to uphold and protect the constitution
and to be chief arbitrators over all disputes in the country. Of course, the exercise of the powers will
inevitably conflict with the other powers, but it has always been deemed necessary for the Executive
and the Judiciary to intervene as a check over the legislature from abusing its powers. It is argued that
separation of powers is not desirable because good governance requires that the Members of
Parliament serve as part of the Executive. The idea is that the Executive should get in touch with the
needs of the people and this it can only do when it is part of Parliament for here, the Executive can
keep pace with the proceedings in the House and they can then explain polices of the government
directly to the people.

Finally, there are some instances where it is necessary for the Executive to exercise legislative
powers and this arises especially in emergency situations and where Parliament cannot be convened
and thus emergency powers under which the Minister can make law. But these can be abused.
(Parliament as Judicial power e.g. Censorship [Muhwezi]) NB Bills are assented to by the President
and introduced by Cabinet.

How is the doctrine of separation of powers manifest in the 1995 Constitution?

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The 1995 Constitution is a hybrid with a combination of not only the Executive and Parliamentary
systems of government, but also has aspects of a Parliamentary system. This hybrid system produces
some degree of tension and even some aspects of conflict between the three organs of the state, i.e.
the Executive, Legislature and the Judiciary, which tensions emerge from different sources which are
the nobility of the 1995 Constitution in comparison to the 1967 Constitution which had clearly
defined demarcations between the three organs.

The constitution provides that there are three organs, i.e. the executive, the legislature, and the
judiciary. Art 99 - powers of executive, Art 77 - establishes parliament, 79 - gives functions of
parliament, Art 126 - establishes jurisdiction and power and of the judiciary.

The constitution provides that in terms of personnel, the three organs will as much as possible,
employ different people. Where officers double as members of parliament and of the Executive, there
is a clash with constituency duties as they side more with the executive than.

The constitution recognises that for practical purposes it is impractical and not possible to have
complete separation of powers. For purposes of explaining government policy it is necessary that
members of cabinet sit in the legislature. This is to explain to the legislature what is going on in the
cabinet.

It is also the duty of parliament not only to make laws but to ensure that the executive standing
committee carries out its work properly. Art 118 empowers parliament to move a vote of censure
against any minister on specified grounds.

Parliament is supposed to exercise a lot of control over financial matters. PAC and other committees.
See Art 93. Many public appointments can be made by the president but on approval by parliament.
(Arts.111&113). This is to ensure that the appointments made are in the people’s interests. NB
recent approval of judges

Bills can only be passed as law if they are passed by parliament and assented to by the president- Art
91.

Art 107 the removal of the president may be effected by Parliament.

44
Art 101, president must address parliament on the state of the nation at the beginning of each session.

QN. How effectively has the doctrine of separation of power been included in 1995 constitution
and does it work in practice?

CRITICISM

1. The Principal is incoherent/hopelessly ambivalent.

2. It imposes legal limits on the operation of the legislation
There is no material difference between the 3 functions, so why should one, not the other, perform
one task. For example, judicial and administrative decisions.
3. The principle is irrelevant Vs. bureaucracy/tyranny (democratic control);
4. The principle is impossible to define with precision.
5. Executives enjoy massive delegated authority.
6. Judicial review is inhibited (makes judges reluctant to intervene) eg Kanyeihamba in
TINYEFUZA’S case

THE DOCTRINE OF SEPARATION OF POWERS:

The Executive and Cabinet system:

The primary objective of this arm of government is the governance of government affairs especially
the implementation of policies. It contrasts with the legislature that is supposed to formulate laws and
the judiciary supposed to interpret it under article 126 of the Constitution.

The executive authority of Uganda is vested in the President and it must be exercised in accordance
with the Constitution and the Laws of Uganda.

The President is the governor of the country. He shall be Head of State, Head of Government and
Commander in Chief of UPDF and Fountain of Honour. Executive authority means the power to run
government and is basically made up of five different elements:

45
(1) He has the duty to constitute the Public Service and other services and organs of the State and
other bodies by appointing competent people on the chair subject to their qualifications

The President exercises all executive powers although s/he does so with the support or assistance
from other organs or individuals. The Constitution therefore, establishes other constitutional offices,
which are for purposes of assisting the president in executing his functions. These offices are usually
regarded as part and parcel of the executive (What is the status of State House appointees?).

Executive authority normally means power to run the government. So the executive head is always
head of government who will appoint members of government and can remove them whenever he
wants (Cabinet and other officers basically serve at the pleasure of the President: no security of
tenure) See case of Dunn v. The Queen, held that ‘servants of the Crown hold office only during the
pleasure of the Crown, except in cases where it is otherwise provided by statute (part of the original
prerogative of the Crown (see also Rodwell v. Thomas and Terrell v. Secretary of State for the
Colonies). This power was confirmed by the case of Opoloto v. Uganda, where the court held that it
was one of the prerogative powers vested in the Crown and inherited by the President of Uganda, and
that to take away that power would require clear words in the statute (cf. case of C.B. Reilly v. The
King, which was concerned with the abolition of an office by statute). The court would not interfere
in the dismissal of the appellant who had been discharged as a member of the Armed Forces and
Chief of Defence Staff because this could ‘embarrass and prejudice the security of the state.’
Furthermore, in the case of Kayondo v. AG, court held that there was no inherent right to political
office. However, in Tinyefuza v. AG, Justice Kanyeihamba (at p.32) stated that,

“Where a matter is governed by statute and regulations made there under, the exercise of the
President’s prerogative to affect the same matter in one way or another, even in cases where there
may be apparent omissions in the law is very severely limited…. In this age of modernity,
democracy and entitlement to human rights and freedoms, Opoloto’s case can no longer be treated as
good law. The Constitution and Laws of Uganda have provided clear and emphatic provisions for
the removal from office of public officers. Removal must be for cause and the person affected must
be given notice and an opportunity to be heard. Therefore, this court must confine the Opoloto case
to its Four Corners.”

Needless to say, where an Act of parliament contradicts the express provisions of the Constitution
with respect to the exercise of executive power, the Act will be invalid to the extent of the

46
inconsistency. This was the holding in the case of Fox Odoi-Oywelowo v. AG (Const. Pet. No. 8 of
2003), in which the petitioners challenged the constitutionality of certain provisions of the
Leadership Code Act which mandated that upon the failure of a Public Officer to remit a declaration
of their assets to the IGG, that person shall be dismissed from office. The court held that this
provision contravened several articles of the 1995 Constitution, which provided for a different mode
of enforcement of executive power. In other words, a mere statute could not prescribe a different
method of removal of certain public officers as stipulated in the Constitution. Specific provisions
cited included: 60.8 (on the Electoral Commission); 146.7 (on the JSC); 161.5 (BoU); 163.10
(Auditor General); 165.8 (PSC); 167.9 ((Educational SC); 169.9 (HSC); 238.5 (ULC). Several other
Constitutional offices (e.g. Human Rights Commissioners, etc.) must be removed under the specific
provisions, although the Constitutional Amendment Bills wants to change these, essentially reducing
the current protections.

FUNCTIONS OF EXECUTIVES

1. Initiate policies for the management and development of the country.

Kanyeihamba, JSC in Tinyefuza v. AG at p.27-28:

“ 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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2. Ensure implementation of policies once initiated.
3. Maintain law and order (Art 99 - President shall execute and maintain this constitution and all
laws).
4. Makes subsidiary legislation: Parliament cannot possibly make every law or byelaw that needs to
be made. He makes subsidiary legislation, subordinate to the principle legislation. Under article 99
(5), a statutory instrument or other instrument issued by the President or any person authorised by
the President may be authenticated by the signature of a Minister and the validity of any
instrument so authenticated shall not be called in question on the ground that it is not made, issued
or executed by the President Art. 99(5) AG SI on prohibited societies.

Constitutes and make appointments to any positions in the public in the service, subject to
parliamentary approval. See Banana v. A.G (1999) 1LRC 120

The President in exercising his executive duties is aided by other officers:

a. The V.P, art. 108;
H/she deputises the president and performs any other functions so assigned to her by the President;
b. A cabinet of ministers, art. 111 & 112 which shall consist of;
i. the P; Armed forces, ONAPITO
ii. the VP
and such other ministers contravening art. 113. Ministers not to exceed 22.
The AG is provided for under art. 119. For the first time since the 1962 constitution, the AG’s office
has been separated from that of the minister of justice.

The DPP is an independent functionary supposed to oversee criminal proceedings in the country
under article 120. There are other offices that can assist the Executive in the maintenance of law and
order inter alia . The Police force, the Prison forces.

Election of President (qualification) Art 102 and 103 as amended by S. 27 of Act 11/2005.

1. Citizen by birth;
2. Should be between 35 years and 75 years of age;
3. A person qualified to be a Member of Parliament;
4. He must also comply with the requirements of the electoral law e.g. deposit 8 million Shillings.

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Electoral procedure is found in the Presidential Election Act. The Constitution provides that the
president shall be elected by universal adult suffrage and through the secret ballot. In 1967 the
Constitution provided that the elections were along party lines and the leader of the majority party
would become president (presidential election was thus indirect). The 1995 Constitution under
article 103 stipulates that election should be direct and must be held within the first 30 days of the
last 99 days before the expiration of the term of the President except in the case of:

(a) The first election under this Constitution;

(b) An election held under article 104 (6) of the Constitution where an election us annulled, in which
case, another election has to be held within 21 days from the date of the annulment;
(c) An election held under article 109 (2) where the President has died, resigned or been removed, in
which case, the elections must be held within 6 months;
(d) An election necessitated by the fact that a normal presidential election could not be held as
a result of the existence of a state of war or a state of emergency in which case, the election shall be
held within such period as Parliament may by law, prescribe;
(e) A candidate shall not be declared elected as President unless the number of votes in favour of that
candidate at the presidential election is more than 50% of the valid votes cast at the election. Where
at a Presidential election, no candidate obtains the percentage of the votes specified above, a second
election shall be held within 30 days after the declaration of the results in which election, and the two
candidates who obtained the highest number of votes shall be the only candidates. The candidate who
obtains the highest number in an election shall be declared elected President.

The Electoral Commission shall ascertain, publish and declare in writing under its seal, the results of
the presidential election within 48 hours from the close of polling. A person elected President shall
assume office within 24 hours after the expiration of the term of the predecessor and in any other
case, within 24 hours after being declared as the President.

Article 104 deals with the challenging Presidential Elections. Case of Kizza Besiege v. Y.K.
Museveni (2001) established that the President could be sued under Art.104 (as an exception to
presidential immunity).

Security of Tenure of President

Once a person is elected he is expected to serve for at least 5 years unless he resigns or dies in office.
The president may, however, be removed from office on the following grounds: - Art 107

49
1. Wilful abuse of office, or violation of the oath of allegiance;
2. Misconduct or misbehaviour;
3. Physical or mental incapacity such that he cannot perform his functions.

Privileges that go with office of President

1. No direct private taxation. Art 106;

2. Immune to any judicial proceedings while in office (principle dealt with in the case of: Baumann
& Co. v. Nadiope [1968] EA 306. Issue was: (I) whether the effect of the protection given to the
Kyabazinga was to cover exemption from jurisdiction (was it procedural, or did it destroy the
cause of action against him? Court held that there was never any immunity from legal liability,
but during the period of protection, there was exemption from civil jurisdiction; the cause of
action had not been destroyed, and thus proceedings were allowed. In R v. Bartle & the
Commissioner of Police for Metro Police & Ors Ex Parte Pinochet (1999) established the
principle of universal jurisdiction and presidential immunity.

The case arose from an attempt by the government of Spain to extradite Senate Augusto. The Spanish
Government wanted him extradited to stand trial for acts of torture, murder, conspiracy and illegal
detention. There were two issues to be determined and these were:
1. Whether there were any extraditable crimes;
2. Whether Mr. Pinnochet was entitled to immunity?
The issues on immunity as framed by court were:
a. Whether a former Head of State is entitled to immunity for all acts done while in office.
The answer to this issue as found by court was that the Head of State is entitled to complete
immunity while still in office and in this respect, h/she is rendered immune from all actions of
prosecution whether not / not for matters done in relation to the state. When and if he leaves office,
he only enjoys partial immunity, only immunity in relation to official acts done while still in office.

b. Whether the commission of an International crime against humanity such as torture subjects the
Head of State to prosecution after leaving office?
Court realised that the Convention against torture of 1984 requires all states to ban and outlaw
torture. So, for the purpose of International Law, a person / Head of State cannot claim that an act is
official when International law has prohibited and criminalised the act. To rule otherwise would

50
provide a safe haven for tortures. Therefore, the immunity of the Head of State would be inconsistent
with the Torture Convention. Mr. Pinnochet was therefore not immune for acts of torture that he was
alleged to have committed after 1988 when the Torture Convention was ratified. Pinnochet came into
power in 1973-1992.
This nevertheless pierced the immunity syndrome leaving the Presidents at the mercy of the Courts.
The case has been seen as a landmark.
Art 98 (2) provides that the president shall take precedence over all persons.

The exercise of Royal (Executive Prerogative)

In the United Kingdom, there is a residue of powers reserved to the sovereign (Crown) over several
matters in which legislation may be silent. Convention (unwritten rules of conduct) have filled in the
lacuna and among the Conventions are the following:

I. The Sovereign should act on the advice of her/his Cabinet (through the Prime Minister);
II. The Sovereign should invite the leader of the political party, which enjoys the support of the
commons to form a government;
III. The Sovereign should appoint as Minister's nominees of the Prime Minister;
IV. The Sovereign should always give her/his assent to any bills presented to her (Art 91.3);
V. The Sovereign should normally dissolve parliament at the Prime Minister's request;
VI. Prerogative of Mercy (Art. 121)

In the case of Uganda, a number of these prerogatives (including IV and VI) have been incorporated
into the 1995 Constitution. With regard to other matters, it is quite clear that the President cannot
claim a prerogative where it has not been explicitly given. Overruling the case of Opoloto v. AG in
which the Presidential prerogative to dismiss at will was overruled (Justice Kanyeihamba)

The question of Presidential immunity also arose in the case of Baumann v. Nadiope

The Vice President the Kyabazinga of Busoga in this case was supplied with fish and he refused to
pay. Boumann found it difficult to sue him while he was Vice President. After his term of office the
suit was brought against him but it was argued that the limitation time was over. Court ruled that the
president’s immunity as concerned judicial matters extended to vice presidents.

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Art 106 - Salary allowances charged on the consolidated fund.

Consolidated fund:

This is the fund to which all government monies are paid into. It always has money because it is the
source of all other funds. President’s benefits and allowances are exempted from direct personal
taxation except official salary.

Furthermore, the president is guaranteed retirement benefits, which under no circumstances can be
varied to his disadvantage.

Limitations in regard to the President.

I. Cannot enjoy a free social life;

II. The President cannot hold any other public office other than those conferred by the
constitution.

State of Emergency

In addition to the presidential powers, which relate to his functions, the president also has
special powers in respect to maintenance of law and order.

Art 110 – The president may with consultation with cabinet proclaim that a state of
emergency exists within Uganda or any part of Uganda. A state of emergency may be declared under
or in any of the following circumstances: -

- Where a state of war exists between Uganda and a foreign power.

- Where internal insurgence or national disaster threatens the economy of the country.
- Where public safety requires those special measures to be taken to secure the defence or the security
of the country or where special services are required.

The Constitution requires that any proclamation of a state of emergency must be approved by
parliament within 14 days after it has been proclaimed. If not approved, it will not take off. State of
emergency usually involves suspension of some basic rights, which may have been laid down in the

52
constitution. The Constitution gives parliament powers to enact such laws as may be necessary for
effective implementation of a state of emergency.

The composition of the Executive:

Furthermore, the armed forces are a part of the Executive and supervised by Parliament (31-32) The
members and officers of the armed forces are in a category of people who are different from ordinary
citizens. The armed forces are instruments of state, equipped, disciplined and trained to exercise
physical force in the interests of the state. They are subject to both civilian and military law. The
discretion and judgment on military affairs and personnel are vested in the President as Chief
Executive who also happens to be the repository of constitutional and legal powers relating to the
same subject matter. Courts should refrain from reviewing decisions relating to military affairs unless
they have to. The exercise of judicial power must be within proper bounds and should fall short to the
point beyond which it might be considered as an intrusion in the powers of the co-ordinate branches,
namely, the Legislature and the Executive. The Constitution has empowered Parliament, and not the
Judiciary, to supervise the Executive when the latter is exercising its functions in military operations.

VICE PRESIDENT

Art 108 establishes the Vice President's office. The VC deputises the president as when the need
arises. Usually, the president gives the Vice President his/her duties. Most times the functions are
that of a minister.

Art 109 in the President’s absence (death, resignation) Vice President will automatically take on
president's office and carry out his duties.

Before the 1995 Constitution, there were several problems with the constitution of this office. First,
LN No.1/1986 abolished the office; several attempts were made to reinstate.

THE PRIME MINISTER

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The position is not provided for in the Constitution, and some have argued that it is in existence
illegally. Government has argued that the President has the inherent powers to appoint any of the
members of Cabinet as Prime Minister for administrative convenience (the argument is a bit shaky,
especially since the Constitution (Amendment) Bill has introduced the position.

CABINET

Another office established by the constitution to assist the President is Cabinet. Art 111 provides that
there shall be a Cabinet composed of the President, Vice President and such other ministers as the
President may think necessary (number is fixed at 21 (Art.113.2) but may be increased by
Parliament. Art 111(2) gives the functions of cabinet - to determine, formulate and implement the
policy of the government. Furthermore the constitution also provides for ministers Art 114 – the
President may appoint other ministers to assist cabinet in the performance of their functions. The
Constitution also establishes other offices, which assist the President. Those include the office of the
Attorney General who advises President and cabinet on all legal matters. (When the President
appointed Adolf Mwesige as AG, objections made him quietly reconstitute the appointment to
Minister of State for Constitutional Affairs). The Attorney General is the only specialist member of
Cabinet (can only be a lawyer). Art 120 establishes the office of DPP with functions outlined in
Art.120.3. There are other departments, which assist the president in carrying out executive functions
e.g. the Police force that helps in ensuring law and order. Art 211.

CABINET SYSTEM AND MINISTERIAL RESPONSIBILITY

The Cabinet is a body of ministers that assist the president in carrying out executive functions of the
State or government? The cabinet assists the President to promote policies. President, Vice President
and Attorney General (Art 119) are the only offices/posts, which are definite members of cabinet.
The constitution also provides that there shall be other ministers appointed by the president to assist
cabinet ministers in performance of their functions/duties.

Cabinet must be unanimous in its advice to sovereign and present a united front in parliament (rebels
should resign, rather than publicly disagree) (Articles 117 and 118)

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 Government must enjoy the support of majority of commons, if they cease to, the Prime Minister
should request a dissolution and call a general election.
Ministers control various departments and assume a number of obligations:
(1) Individual responsibility:
The Minister oversees policies in his Ministry and is answerable to the President. Individual
responsibility requires that the Minister must carry himself in a manner that befits his position. If he
fails in his individual responsibility, he would have failed at two legs:
a. With regard to his boss the President;
b. In his individual responsibility to the public at large.

The President can sack the Minister anytime, any place, anywhere and the public through its elected
representatives the Members of Parliament can display its displeasure through censorship, art. 118.

In Uganda, there have been several attempts and successful censorships: 5 successful censorships. K.
& J.M.K resigned while Specioza dodged.

1. Matthew Rukikaire;
2. Kirunda Kivejinja;
3. James M. Katugugu;
4. Sam Kutesa;
5. Specioza.

There are a number of things that can he said about the censorship:
1. The rules of procedure were not very clear and this was the main reason as to Jim’s appeal to the
High Court in MUHWEZI KATUGUGU v. A.G37. Unfortunately, the C.A dismissed his petition on the
technicality that he had not got the Speaker’s permission from Parliament. But wasn’t this a wrong
decision for art. 126 (2) (e) talks of substantive justice without undue regard to technicalities. They
would have dealt with the substance.

2. The phrase appropriate action contained in para 2, art. 118 states that:
After a censorship motion has been passed, the President shall unless the Minister resigns take
appropriate action in the matter. But isn’t the word ‘appropriate action’ too wide that various

37
C.A Constitutional Petition no. 4/98

55
meanings can be attached to it? He can choose to transfer the Minister to do something else. Such a
Minster should just be forced to resign.

The calling of individual responsibility is collective responsibility.

A Minister must accept responsibility for authorised conduct of officials in his or her Ministry. The
minister must account to parliament and protect such officials. If there is serious
misconduct/misjudgement, Minister should resign (Valley Dams, UCB).

Members of cabinet do not enjoy a particular period of tenure. They are appointed by the president
and usually enjoy their office at the pleasure of the president with the approval of parliament.

Art 116 - office of minister may be vacant if any of the following happen

i. Where president revokes the appointment;

ii. Where the minister resigns;
iii. Where he becomes disqualified to be Member of Parliament
iv. Where pursuant to a vote of censure the minister is removed by Parliament Art 118;
v. Upon death.

THE LEGISLATURE

SUPREMACY / SOVEREIGNTY OF PARLIAMENT

According to the principles which are enshrined in the Constitution, Uganda is supposed to be
governed along democratic lines and the constitution guarantees all people of Uganda a right to
participate in affairs of government through their duly elected representatives.

56
Originally democracy meant everyone's direct participation in the affairs of state. However, with the
growth of population, it is impracticable to practice democracy in that manner. Therefore indirect
democracy exercised through duly elected representatives is accepted as fulfilling the minimum
requirement of a democratic society.

The organ of government, which puts in effect this concept of democracy through representation, is
actually the legislature, which we hence call parliament. Parliament is established under art 77 of the
constitution. There shall always be a parliament of Uganda.

Under English law, the doctrine of parliamentary sovereignty holds that parliament is the supreme
organ of government. In this way, it can pass laws on any matter and such law cannot be questioned
in a court of law. This position derives from the notion that Parliament represents the will of the
people. It also means that parliament has unlimited legislative competence i.e. the power to make
any law without restriction (See Edinburgh Dalkeith and Bradlaugh vs. Gosset. 38 It is a doctrine,
which was developed under English constitutional history, and arose as a desire to limit the powers of
the executive which at that time were heavily dominated by the monarchy. As a result of various
wars, it was agreed that a democracy required a representative government where by all peoples are
represented at the highest possible level. As a consequence of the doctrine of separation of powers,
this representative government could only be ascertained from the role of parliament. Parliament was
thus viewed as a symbol of representative democracy.

However, in Uganda the situation since the enactment of the 1995 Constitution has shown a
difference. That difference has been articulated in several cases. In David Tinyefuza v. AG
Kanyeihamba, JSC, that stated that:

“… the rule appears to be that courts have no jurisdiction over matters, which are within the
constitutional and legal powers of the executive. Even in cases where courts feel obliged to intervene
and review legislative measures of the legislature or administrative decisions of the executive when
challenged on the grounds that the rights or freedoms of individuals are clearly infringed or
threatened, they do so sparingly and with the greatest of reluctance (citing Marbury v. Madison)
(p.10)”.

38
(1884) 7 QB 271

57
But in the later case of Paul K. Ssemwogerere & Zachary Olum v. AG,39
“I noticed that counsel for the Attorney General relied very heavily on authorities derived from
English courts while applying and interpreting the unwritten British Constitution which operates
under a sovereign Parliament. In Uganda, it is not Parliament but the Constitution, which is supreme.
Relevant authorities should have included those derived from countries with similar written
constitutions….” (P.13)

The court laid down several rules by which Parliament is to claim and protect its powers and internal
procedures:

It must act in accordance with constitutional provisions, which determine its composition, and the
manner in which it must perform its functions;

If it does not do so, then, any purported decision made outside those constitutional provisions is null
and void and may not be claimed to be an Act of Parliament;

Thus, in the case of Paul Kawanga Semogerere v. AG40 a petition was filed seeking to challenge the
validity of the Referendum (Political Systems) Act, 2000 for being passed without the proper
procedures and time frame laid down in the Constitution of Uganda. The undisputed evidence
available indicated that the Act was assented to in June 9, 2000 and published in the Gazette in June
12, 2000. The impugned Act therefore became law in June 12, 2000 though its section 2 backdated
its effective date to July 2, 1999. The referendum for which it was made was scheduled to be held in
June 29, 2000. The impugned Act achieved its full effect and therefore became spent when the
referendum was held and its results were published by the Electoral Commission in July 28, 2000
U/General Notice no. 280 and the Movement Political System adopted.

Counsel for the petitioner submitted inter alia that art. 271 (2) required a two years period for the
people of Uganda to be free to canvass for public support for a political system of their choice before
the holding of the referendum. But that the impugned Act, made u/art. 271 (4) was made and
published less than one month to the holding of the referendum. Counsel for the respondent argued
inter alia that the two years period stated in art. 271 (2) had to be understood in light of art. 271 (1) &
(3) and was not dependant on the enactment of the Political Parties Organizations Act. That the effect

39
Supreme Court Constitutional Appeal 1/2000
40
Constitutional Petition 3/00

58
of the three provisions was that only one year was given for canvassing for public support for choice
of a Political System.

The Constitutional Court held inter alia:

iv. Any law passed outside the procedures laid down by the Constitution is no law at all;

v. The Court went on to point out that the Standing Committee of Parliament is constitutionally
provided for and is constituted during the First Session of Parliament and its members elected
from among members of parliament. A Committee of the whole House is not specifically
provided for under the Constitution and only falls under ‘other Committees necessary for the
efficient discharge of its functions’ u/art. 90(1). Therefore, where the Constitution stipulates
that bills be referred to an appropriate Standing Committee, Parliament cannot substitute a
Committee of the whole House for that of a Standing Committee;

vi. Further more, the Court pointed out that an interpretation of art. 271 gives the people of
Uganda about one year to freely canvass before the holding of the referendum. Parliament
was under a duty to make laws two years before the expiry of the term of the first Parliament
elected under the Constitution to set the people of Uganda free to canvass for public support
for the choice of a political system. In the instant case, the narrowing of the time provided in
art. 271 (2) amounted to amending the article without following the amendment provisions
contained in the Constitution;

vii. The attempt by Parliament in S.2 of the impugned Act to backdate the effective date
of the Act to July 2, 1999 was intended to stretch the time backward to comply with art. 271
(2). Default had already been committed when the Act was not put in place two years before
the expiry of the life of the first Parliament selected under the Constitution and backdating the
effective date of the Act was of no help since the Constitution wanted the law to be in place
two years before the expiry of the life of the first Parliament; Therefore, the short time of 16
days allowed under the impugned Act as against one year intended under the Constitution for
the people of Uganda to canvass for public support to choose a political system was
inconsistent with art. 271 (2) of the Constitution.

59
viii. The restriction u/s. 12 (8) of the impugned Act of 72 hours written notification to the Sub-
county or Division Chief of the area and the Police Officer in charge of the area each time one
wanted to address a public rally in an area around the country and further information
regarding one’s intended activity as the Police Officer- in- charge of the area may require
from him/ her are repugnant to the freedom envisaged in art. 271 (2). This section is a replica
of S. 13 of the Referendum and other Provisions Act, no.2/1999 which was later declared by
the Supreme Court to be unconstitutional;

ix. The method of voting of ‘Question put and agreed to’ does not show how the majorities were
determined and this is c/art. 89 of the Constitutional;

x. The referendum to choose a political system was held in June 29, 2000. This was done before
the Political Parties and Organizations Act, no.18/2002 came into force. The Act came into
force in July 17, 2002 meaning that when the referendum was held, the shackles with which
art. 269 bound the Political Organizations were still on. Without removing the bondage, the
free and fair elections or referenda provided for in art. 69 cannot be achieved. They remain
illusory. The referendum that was held on June 26, 2000 when the Political Organizations
were still bound by the shackles placed on them by art. 269 could not have been free and fair
because the people who subscribed to political philosophies different from that of the
Movement did not fully canvass their views. The impugned Act with its shortcomings was not
enough. There was need to pass a law u/art. 73 to remove the bondage placed by art. 269
before holding the referendum on June 29, 2000. Subsequently, the referendum was therefore
held in contravention of article 69.

II. Laws and rules made by Parliament cannot take away the Constitutional Court’s jurisdiction to
hear allegations of breach of the Constitution by Parliament. Where breach of the Constitution is
alleged, the Court should decide whether or not there was a breach (Oder at 21, and 25): This point
was also emphasised in the case of Paul Kawanga Semwogere v. A.G41 that a system set in place
by or under an Act of Parliament or any law can be challenged u/ article 137 of the Constitution at
anytime not withstanding the repeal or expiry of the Act.

In Uganda, the position is different from that of the United Kingdom. We have a written
Constitution, which, as Article 2(1) provides, is the supreme law of the land and has binding force on
41
Ibidem

60
all authorities and persons throughout Uganda. Parliament is subject to the Constitution. Where it is
alleged that Parliament has acted unconstitutionally, the courts, as the protectors and interpreters of
the Constitution, have jurisdiction to inquire into such alleged acts of Parliament even if they relate to
matters of internal proceedings of Parliament.

Parliament has power to direct and influence all political developments within the state.

Sovereignty of parliament is usually ascertained from the following:-

Doctrine of separation of powers.

A sovereign parliament usually exists under a framework, which allows separation of powers. This
enables separation of functions and also ensures that no organ of government controls the other
organs. In the exercise of legislative functions, constitutions usually provide that parliament is
supreme.

The sovereignty of parliament can also be ascertained from the relationship between the legislative
and executive. The supremacy of parliament exists in situations where parliament acts or has power
to act as a watchdog over the executive. Art. 1, 2, (Info) - 41 (Modification) 273.

Parliament supremacy can also be ascertained from the allocation of legislative functions under the
constitution. A constitution, which provides for a supreme parliament usually, reserves all supremacy
of the legislature in parliamentary hands (Art. 79.) It has supreme law making powers. This
supremacy is:

1. Geographical: it extends throughout Uganda from border to boarder in law making.

Parliament can make laws covering any subject matter.
2. Legislative functions also cover all individuals without restriction

Limitations:

I) Public Policy

61
Parliament usually legislates in order to implement public policy. It is not within the competence of
parliament to legislate in defence of public policy.

ii) Consultation

Before any piece of legislature is passed, a wide range of consultations usually take place which
clarify the particular policies it should implement, the consequences of them etc.

iii) Public Opinion

Parliament also takes into account public opinion on the issue under debate before it can pass the
relevant law.

The prohibition of retrospective legislation

Parliament cannot make penal statutes, which have retrospective effect (Art 92.)

The social and economic position of a country may also limit the powers of parliament because there
are other people who can dictate upon it. E.g. UN - World Bank.

-LAWS MUST CONFORM TO THE CONSTITUTION:

In the case of Zachary Olum & Anor v AG42 the Constitutional Court pointed out that Parliament
u/art. 79 has power to make laws. The laws so made must however conform to art. 2 and if they are
already existing laws must pass the test laid down by art. 273.

Privileges & Powers of Parliament.

One of the aspects emphasising supremacy of parliament is privilege enjoyed by members of

parliament. Privileges exist so as to enable members of parliament to carry out their duties without
fear or favour. Art 97 of constitution provides that the speaker, deputy and members of parliament or
any person participating or assisting in or acting in connection with the proceedings of parliament
shall be entitled to privileges and immunities as prescribed by parliament. There are however,

42
Constitutional Petition 6/99

62
established privileges and immunities, which have been recognised and applied for ages as far as
parliament is concerned.

In English Common Law, there are four key elements to this power and privilege:
1. MPs must be free from arrest / molestation;
2. Liberty of speech in all debates in Parliamentary Chambers must be emphasised. An MP is free to
speak h/her mind in all debates and cannot be made a subject of any proceedings;
3. MPs enjoy the privilege of access to the royal person whenever the occasion requires in order to
ensure harmony between the crown and the legislature.
4. All proceeds in the House should be given the most favourable interpretation by the Monarchy.

In Uganda, the privileges of the legislature are enshrined in art. 97 of the Constitution. The
prescription of those privileges are found in the National Assembly (Powers & Privileges) Act. Also
see Kanyeihamba on P. 264-274.

1. Under the Act, no criminal or civil proceedings may be instituted for words spoken before/ written
in a report to the Assembly/ to a committee of the House. This covers everything in the House though
it is questionable whether it covers everything outside the House.

Read the Matter of Parliamentary Privileges Act (also known as Strauss’s case)

Onama Felix Kenyi v. Augus Newspaper,43 the appellant sued the respondent Newspaper in libel
on the basis of words spoken in the National Assembly. The respondent newspaper won in the first
instance. However, on appeal, the case was overturned because the appellant demonstrated that what
was reported in the newspaper was different from what was said in the House.

Importance of the case:

The reformation of the privileged character of legislative proceedings.

There are three key ideas that form the notion of free speech in parliament.
(I) There is only the National Assembly that can and should judge the conduct of its members. In
other words, if members are indiscplined, it is the House to set the sanction and not anyone
else.
43
(1969) EA P.62

63
(II) Not only the House members but also private members who communicate with the National
Assembly are protected;
(III) The free speech privilege is absolute and not limited to any matter whatsoever with only one
exception- the sub judice matters.

Thus, in the case of AG v. Tinyefuza,44 the AG, then Bat Katurebe criticised the Constitutional Court
for ignoring S. 14(2) of the National Act which provision barred public officers from producing
certain evidence without authority. One of the issues before court in this case was whether the
appellant was protected under art. 97.

Per Wambuzi CJ at p. 20,

“The respondent (Tinyefuza) did not say what the privileges and immunities were in his petition.
Apart from art. 97, there is no reference to any other law to substantiate his claim. To that extent, the
petition is in my view defective as it does not identify any immunities and privileges enjoyed by the
respondent. A simple amendment would have cured the defect. Even after recourse to this law, still
no immunities/ privileges have been identified until we know what right or privilege a witness before
a court of law has, common knowledge or judicial notice to bridge the gap. Otherwise, recourse must
be made to yet another law / laws to establish the fact that no proceedings, civil or criminal may be
brought against a person by reason of evidence given by that person in a court of law.

Kanyeihamba J at P.29,
“It does not mean that even if proceedings before parliament ate privileges that one should not act on
the findings of the Committee. What one says outside Parliament may have their receptions. Court
cannot say that you are not liable for matters spoken outside Parliament touching on parliamentary
matters because they are privileged.”

2. Publications of own proceedings in documents known as Hansards. Parliament has the right to
control the use of Hansards. This was the case in Muhwezi Katugugu V. A.G45 which was dismissed
because the petitioner had failed to get permission from the Speaker.
Also see OPOLOTO’s case.
xi. Freedom of all members of parliament when going to attend or returning from a sitting of a
Committee of the Assembly;

44
Supreme Court Appeal 1/97
45
Constitutional Court Petition no. 4/98

64
xii. Parliament can devise punishments for any breach of privilege or contempt of Parliament
including admonition, reprimand, suspension or expulsion or an order that the offender be
tried. In this respect, the Speaker has the power to discontinue the speech of any member who
is being irrelevant or who is guilty of tedious repetition;
xiii. Parliament has the power to regulate its own proceedings and also to be paid adequate
remuneration.
xiv. Regulating discipline is another privilege in parliament. Parliament disciplines its own
members. The disciplinary procedures are contained in parliament procedures, which are
made by the parliament.

HOUSE OF PARLIAMENT

1. House should always yield to the will of the commons (elected);

2. Financial measures must be introduced in the House of parliament by a Minister (C/Ex);
3. The speaker to be heard must give a chance to minor parties to be heard;
4. Members of parliament should have access to the CR (question ministers) through the speaker;
5. All political parties should be represented (normally in proportion to representative in House of
Parliament) in parliamentary commissions. Opposition should lead PAC.

Rules of procedure

Art 94 provides that parliament may regulate its own procedure. So there is no law made by the
constitution on government is to be conducted. No other body regulates the Parliament.

Remuneration

Art 85 provides that members of parliament shall be paid emoluments and gratuity and shall be
provided by such facilities as may be determined by parliament.

Financial Powers

65
Parliament is also supreme because of the powers given to it to oversee the financial affairs of the
nation. The constitution requires (Art 155 provides) that the president shall cause to be prepared and
laid before parliament in each financial year the revenue and expenditure for the next financial year.
These should be due on 30th June every year.

Parliament also has powers through its public accounts committee to follow up government
expenditure. In each financial year its role is to ensure that various government departments properly
expend money.

Composition of Parliament (Art 78)

Has 4 categories of membership:-

- Directly elected members who represent constituencies through universal adult suffrage (look at Art
59).
- One-woman representative for every district.
- Representatives of special interest groups e.g. The army, youth, disabled, workers and other
persons whom parliament may decide.
* Should we have such special representatives and which special groups should be
represented?
The ex-officio members who if not elected to represent constituencies become members of
parliament by virtue of their position-vice president and ministers.

For -creates a more accountable executive members of the executive are needed to explain
government policy in parliament.

Against members of parliament who are all potential ministers will strive to be so; they thus will
concentrate more on pleasing government than their constituencies.

A person with divided loyalties e.g. ministers are likely to concentrate more on executive/ministerial
duties (collective representative). The 1995 Constitution tries to reconcile the 2 by not giving these
ex-officio members routing powers.

How they become members of parliament.

66
The Constitution lays down minimum requirements for members of parliament before election (Art
80).

1. Must be a citizen;
2. Must be a registered voter;
3. Must have 'A' level standard of education;
4. Must be of sound mind;
5. Must not be a cultural leader Art 246;
6. Must not be bankrupt;
7. Must not be under sentence of over 9 months imprisonment or death;
8. Must not hold any other public office

Elections of members of parliament differ from category to category. Directly elected members are
elected by universal adult suffrage. The Constitution provides that their electoral method is left to
parliament to determine:-

* Law passed that women shall be elected through electoral colleges - some people are chosen
from each LC level to come together to vote.
Art 78 (40. Art 79.

Functions of Parliament:

Art 77 (2) provides that functions of parliament shall be prescribed by this constitution.
Art 79 (2) provides for the functions of parliament and broadly there are basically 2 functions:-

1. Make Laws
Art 79 provides that parliament shall have the sole power to make laws for peace, order, development
and good governance of Uganda.
Art 79; parliament shall protect this constitution and promote Constitutionalism and democracy.

Procedure in making laws:

67
The constitution doesn't concern itself with the detailed procedures of making laws in parliament.
The constitution confines itself to the basic aspects which include:-

1. Quorum - 1/3rd of all members;

2. Gives insight on the voting procedure;
3. Provides for establishment of various committees but generally the constitution provides that
parliament shall regulate its own procedure. Art 94;
4. Art 93 financial matters, amendment of constitution, removal of member of executive;

HOW ARE LAWS MADE?

In making statutes, parliament uses procedure adopted and laid down by statute. The executive must
approve policy that requires legislation. This involves initiation of policy by the professional
technical department in the relevant ministry. There must be agreement (people must have a basis for
discussion). Policy is discussed and agreed upon in cabinet.

The required law is then drafted and the agreed policy is translated into a legal provision.
The 1st parliamentary counsel/government draftsman who receives instructions from the relevant
government department does this. At this stage, the parliamentary draftsman will have to decide
whether it’s an amendment to an existing law or a substantive change. He will also be expected to
ensure that all changes/likely effects on the existing laws are actually taken into account such that if it
requires amendment of the existing law it should be amended accordingly.

The Interpretation Act provides that if a new law is in conflict with an old one, then the new law
prevails. Courts have however refused in cases where there is an infringement of people's rights.

The parliamentary counsel after drafting the law (which is now called a bill) will present it to cabinet
for discussion and approval.

The bill then is presented in parliament and takes 3 distinct stages: -

1st reading: A simple introduction of the proposed law to the members. It can take as short as one
minute. There is no discussion on the bill at this stage but the minister will have circulated the bill to

68
the members of the house to know about it before it is presented to parliament and the bill will also
have to be gazetted in the Uganda Gazette. Circulation and publication is to enable both members of
parliament and the public to know about provisions of the bill so that they can contribute to the
debate effectively.

In the case of Miria Matembe & 2 Ors. V. AG46court held that

“It was premature to gauge a breach of the Constitution before a Committee has submitted its report
to Parliament. Since Parliament has a duty to act within the Constitution when carrying out its
legislative functions, it is too early to tell whether it will breach the Constitution at this stage.”
(P.13).

2nd reading: Here the bill is actually discussed. At this stage, every member who wants to
contribute will be allowed to do so either for or against. It’s also at this stage that the bill may be
referred to a Committee to have an in depth study and make recommendations, whether the bill
should be adopted or not.

Some legislation may be referred to the committee to inquire and to assess the general public mood
towards the bill. Expressions can be called in as well. Parliament is free to get all types of
information. It’s also free to contact the relevant minister to seek clarification/ clearance and may
disagree with them. But the Minister and his technocrats have a deeper understanding and can advice
Parliament on how best to pass the law.

At the end of the 2nd reading it will have been agreed upon almost in its entirety. At this stage, formal
amendments are proposed and discussed.

At the end of the 2nd reading the law will have been shaped and will be ready for the 3 rd
reading. All amendments that are agreed upon will be noted and incorporated into the main bill by
the draftsman and clerk.

3rd reading: The bill is read for the 3rd time and this stage involves casting a vote as to whether the
bill has become law or not but this is just formality (at the end of 2 nd reading it is already law). What
is required next is the presidential assent.
46
Constitutional Appeal No.1 of 2005

69
Art 91 says that the legislative powers of parliament shall be exercised through bills passed by
parliament and assented to by the President. Within 30 days after receiving the bill the President
returns it with a request that a particular provision be reconsidered or tells the speaker that he does
not assent or otherwise assents.

Parliament may reconsider it but if the same happens the 3 rd time, parliament will pass the law
without the presidential assent.

Art 91 (8) lays down the requirement for gazetting again of any law or bill passed by Parliament.

The Gazette serves as an official public notification that a particular law has actually been passed.

Commencement date: The law may be affective on the day it is passed by parliament after the
presidential assent or it may be left to the minister to make a commencement date. E.g. (Capital
markets were authorised but are not yet effective.)

Art 155: The President is under a duty to present before parliament in each financial year a
statement of the proposed expenditure/revenue of the government. This proposal is only effective
when parliament approves. It is important because Uganda is a budget economy.

Art 159: Government borrowing can only be effected after approval of parliament where to borrow
from, on what terms, when, for what…. Parliament is given the responsibility in Art 164 - to monitor
public expenditure.

Art 164 (1) Accountant officers are accountable to parliament.

Art 164 (3): Monitor expense.

This is through its Public Acts Committee which has powers to summon any accounts officer
to explain any misappropriation of funds reported by the auditor general who is under a duty to make
Audit reports of all government reports (163 (4).

Parliament has the role of establishing a national planning authority, which will be
responsible for the orderly developments of the country.

70
 Art 125: There shall be a national planning authority whose composition and functions shall
be prescribed by parliament.

Under the 1995 constitution, it appears that parliament is the supreme organ over the
Executive. Apart from legislative powers, parliament is given power to check on the exercise of
executive powers. This power is mainly exercised so as to avoid abuse of office, misuse of power,
nepotism to ensure equitable distribution of resources, to ensure that efficient and qualified people
are in the public department.

Constitutionalism and Democratic Provisions: Constitutional checks of executive powers.

Parliament is given power to remove the president - for certain specified reasons. 47 This is so because
it’s composed of representatives of the people and it’s the only body, which is suitable to remove
democratically, elected government. This power ensures that misdeeds outlined in Art 107 are not
committed by the president and it’s also parliament that ensures that the country is not led by a
physically/mentally incapable president.

Cabinet members are also under surveillance of parliament. Under article 118 - parliament has
power to pass a vote of censure against any member of cabinet or minister. In this provision, it is
ensured that the minister doesn't abuse his office, misbehave, misconduct himself and mismanage the
affairs of administration. Also that there is no incompetence in departments of government or
physically or mentally sick minister is in office. This ensures efficiency and democracy.
Under article 197 - Government could be removed under a vote of no confidence. Parliament is thus
entrusted with powers of government or ministerial removal and approval etc.

Approvals of public appointment

The constitution gives parliament the powers to approve various appointments of public officers.
This was in recognition of the need to have competent and qualified people at the helm of public
affairs and also to ensure that the president cannot make sectarian appointments in disregard of the
47
See article 107

71
actual national character of the country. Parliament approvals ensure qualification, competence and
fair distribution of public appointments among various tribes, regions and religions etc.

There are also provisions to ensure that the president appoints people after consulting parliament:
- Judges, public servants, cabinet ministers, heads of diplomacy and high ranking officers are
actually appointed with approval of parliament. Others include:
-
- Cabinet members Art 113 (1) and 114 (2).
- Attorney General Art 119.
- DPP through PSC Art 120 with the approval of parliament.
- Ambassadors Art 122 heads of diplomatic missions.
- Judges of High Court up wards Art 142.
- Auditor General whose office shall be a public office to ensure that money given to
departments is not misused Art 163.
- Education services commission Art 167.
- Inspector General of Police Art 213.

Art 203 (3c)?

Other functions related to promotion of democratic government are to be ascertained in

relation to national objectives. Democratic principles are established under these national objectives.

Parliament is expected to ensure that these national objectives are carried through because it
is only parliament that can ensure certain issues are put in place.

Powers relating to public finance and the national economy.

Parliament is given power to regulate such matters.48 Finance matters can only be approved
by parliament. There must be a bill following imposition of taxes for paying of public debts. Under
art 152 - no tax should be imposed without the authority of parliament. Thus Parliament debates and
approves whom and what is taxed and the rate of taxing and promoting constitutionally established
constitution. The constitution provides that parliament will be composed of people's representatives

48
See article 93

72
and it’s the duty of parliament to promote and respect the constitutionally established constitutional
provisions.

In this respect parliament is expected to practise the doctrine of separation of powers as it is

established in the constitution. Whereas parliament is not expected to interfere in the functioning of
the executive, under the constitution, it is given power to do so. Similarly the constitution doesn't
give parliament power to undermine the functioning of the judiciary.
Art 92 requires that Parliament shall not pass any law to alter the decision of the judgement of any
court of law. This is different from the constitutions before.49

49
See Kyabazinga's case where parliament reversed the decision of court and Ibingira's case.

73
 THE JUDICIARY
The Judiciary is supposed to help government sort out disputes in a non-violent way. Every society
since time immemorial has had a notion of dispute settlement. The first dispute was THE CREATOR
v. ADAM & EVE. However, unlike the case today, all the powers of law enactor, implementor and
punisher were vested in the Supreme Being.

There are different ways and instruments and bodies given the power and authority to carry out the
functions of the Judiciary50 but the guiding principle is that of the impartiality of the body that should
be ready to listen to both sides in an open and non-discriminatory way. This is the judicial power
exercised by the judiciary and virtually, no state claiming to be a democracy does not have a judicial
arm of government.

In relation to Constitutional law, the question of judicial power is important in so far as it concerns
the settlement of disputes between the individual and the state- this is the essence of constitutional
law. The judiciary intervenes in order to ensure that democratic freedoms and rights ate protected and
that the state does not suppress them.

There are three basic foundations in which judicial power in the arena of constitutionalism is
contrasted and these are:
1. In relation to the formulation of public policy- what should be public policy?
(a) Should the Police accept bribes?
(b) Should the death penalty be upheld?51

2. In respect to the protection of individual rights and freedoms. Individual rights and freedoms are
not meant for the majority for these have ways of setting up rules it safeguard and protect
themselves. Individual rights and freedoms are meant to protect the minority against the
majority’s tyranny and machinisms. The suppression of minority rights has often ended up either
in a riot or violence.

50
For example the different Commissions, most of which have quasi- judicial powers
51
See the case of Susan Kigula and Ors v. A.G

74
3. In determining the necessary boundaries of good governance.
(a) What is good governance?
(b) What are the basic principles by which the rulers should relate to the ruled?
(c) How do you ensure transparency in government operations of duties and obligations?

THE STRUCTURE OF THE JUDICIARY:

The structure of the judiciary is governed by article 129 and their order of jurisdiction is as follows:
a. The Supreme Court;
b. The Court of Appeal;
c. The High Court;
d. Such other subordinate courts as Parliament may by law establish including the Qadhis Courts for
marriage, divorce, inheritance of property ad guardianship as may be prescribed by Parliament.
The question arises, is the General Court-Martial subordinate to the High Court or do the two
courts have concurrent jurisdiction? There has been a debate on the same.

Thus, one of the issues that confronted court in the case of Joseph Tumushabe v AG 52, was the
jurisdiction of the General Court Martial. The Constitutional Court held that the Uganda Peoples
Defences Act that provides for the General court-martial is an Act of Parliament. U/art. 129 (1) (d)
Parliament cannot establish Courts that are superior to the High Court. It can only establish
‘subordinate Courts’ which u/art. 257 mean a court subordinate to the High Court. Such subordinate
Courts include the General court-martial.

Further more, the jurisdiction of the General court-martial is original and appellant over all offences
and persons under the UPDF Act.
.
The Court went on to explain that the only justification for the creation of special Tribunals is that
our ordinary courts of Law tend to be very slow and not suitable for certain category professions and
occupations. Court Martial courts are justified by the fact that they are more suited to try military
service offences than ordinary courts but more importantly, they are expected to dispose of cases
expeditiously. Therefore, it is expected that persons arrested for military offences spend much less
time on remand than their counterparts who appear in civil courts.

52
Constitutional Petition 6/04

75
The High Court has original jurisdiction in all civil and criminal matters. The fact that Parliament
may confer jurisdiction in any matters to another subordinate court cannot oust the jurisdiction of the
High Court in the matter. The fact that Parliament in its wisdom through the UPDF Act confers
jurisdiction in certain cases to the General court-martial does not oust the jurisdiction of the High
Court in such cases.

Earlier on in the case of Uganda Law Society v AG53, the Constitutional Court had held that the
Field Court Martial is one of the subordinate Courts established by Parliament and therefore a Court
of Judicature and one of competent jurisdiction as envisaged in art. 22(1) of the Constitution.

When the Constitutional Court was agin confronted with the same issues in the most recent case of
Uganda Law Society v. A.G54 also known as the Besigye Case, the Constitutional Court was quick
in pointing out that it had erred in its earlier decision in Tumushabe’s case and that actually, the
High Court and the General Court Martial have concurrent jurisdiction. But was this a well- reasoned
decision in the face of article 257 defining the word ‘court’ married to article 129 (1) that expressly
provides for the courts of judicature with the High Court being one of them? Did the C.A delegated
intend to impliedly incorporate the General Court-Martial in the hierarchy of the Courts of
Judicature?55
Justice Kanyeihamba in Tinyefuza v. AG at p.10:

“… The rule appears to be that courts have no jurisdiction over matters, which are within the
constitutional and legal powers of the executive. Even in cases where courts feel obliged to intervene
and review legislative measures of the legislature or administrative decisions of the executive when
challenged on the grounds that the rights or freedoms of individuals are clearly infringed or
threatened, they do so sparingly and with the greatest of reluctance (citing Marbury v. Madison).”

But in Ssemogerere and Olum overturning the decision of the Constitutional Court, the same judge
castigated the lower court for abdicating its responsibility.

53
Constitutional Application no. 7/03
54

55
Also see the Judicature Act.

76
But later in Miria Matembe & Ors. v. AG 56, responding to the Attorney General’s argument that
the court had no power to issue an injunction or other restraining order against the government and
the legislature, quoting Kanyeihamba in the Tinyefuza case, the court stated,

“This rule like any other rule is not absolute. The Constitutional Court was established as the
guardian of the rights and freedoms of the individual against oppressive and unjust laws and acts. It
must remain vigilant in upholding the provisions of the Constitution. Therefore if an allegation is
made against the Executive or the Legislature about the unconstitutionality of their actions or
omissions, this Court is seized with jurisdiction to intervene.” (at p. 10).

Court held that the averments made by the petitioners that there was a prima facie case with a
probability of success would have led them to exercise their discretion to grant the orders being
sought. However, because the petitioner’s affidavit showed that the bill had been submitted to the
Legal & Parliamentary Committee for consideration and the said Committee was yet to submit its
report, it would decline to do so because:

“Until the report is tabled and considered by Parliament, it is difficult to say that Parliament has
accepted the bill and in the format the Minister presented it. Since Parliament has a duty to act
within the Constitution when carrying out its legislative functions, it is too early to tell whether it will
breach the Constitution at this stage. It is, therefore, in our view, premature to gauge a breach of the
Constitution on the part of Parliament. In the result we decline to grant the order being sought and
dismiss the application.”[CC ruling at p.13].

For the first time, Islamic faith is observed under such courts. Exercise of judicial powers falls under
articles 1,3 and 126.
Article 126 says that all judicial power is derived from the people to be exercised by the court in the
name of the people. There are five principles motivating the exercise of judicial power in Uganda and
these are:

a. Justice must be done to all irrespective of their social/ economic status;

b. Justice shall not be delayed;
c. Adequate compensation shall be awarded to victims of wrongs;

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Constitutional Application no.2/05

77
d. Reconciliation’s between parties shall be promoted and
e. Substantive Justice shall be administered without undue regard to technicalities- this has also
come to be known as the lay counsel’s excuse;
But all this has been subjected to the law. That justice must be done goes to the position of the party,
whether political, social or economical. Justice shall not be delayed and court should try to do away
with the anything that holds it back. The compensation awarded to victims of wrongs should be
sufficient and court process should be the last resort and where reconciliation can be afforded, this
should take priority. Did the C.A delegated intend that rules of procedure should be ignored in favour
of substantive justice?57

JUDICIAL INDEPENDENCE
The Independence of the Judiciary is proclaimed in article 128 of the Constitution. (Read the
provisions of the article).

What does the independence entail?

QN: Does the taxation of judge’s affect their independence?

Musalu Musene v. AG
Julia Ssebutinde v. URA

JUDICIAL IMMUNITY:

The judiciary is well protected by the Constitution and other laws like the Penal Code Act. The
immunity of the judiciary under article 128 (4) is also a way taken to ensure its independence.

In the case of Maliam Adekur & Anor v. Joshua & the AG 58 the petitioners sought to make the
Attorney General liable for the actions of the Magistrate who had tried them following their arrest.
The brief background to the petition is that the first petitioner, refused to be inherited by her brother -
in law pursuant to the Iteso local customs and instead eloped with the second petitioner was arrested
and charged before a Magistrate’s Court. The petitioners alleged inter alia that the Magistrate failed
to protect their constitutional right to marry each other to the exclusion of any custom.

57
See how the Judiciary has interpreted this provision.
58
Constitutional Petition no. 1/97

78
Counsel for the petitioners argued that the second respondent u/art. 250 of the Constitution was liable
for the acts of the Judicial Officer, the Magistrate who perhaps failed to protect the petitioner’s rights.

The Constitutional Court held that a person exercising judicial power shall not be liable to any action
or suit for any act or omission by that person in the exercise of judicial power. The Magistrate was
therefore not guilty of any omission or wrongdoing.

Further more in the case of Serapio Rukundo v. AG59 the Constitutional Court held inter alia that
no action can lie against the Government in respect of an act done in the discharge of judicial
functions of the Attorney General.

REMOVAL OF JUDICIAL OFFICERS:

Article 144 (2) provides for the grounds of the removal of a judicial officer from office and these
include:
(a) Inability to perform the functions of his or her office arising from infirmity of body or mind;
(b) Misbehaviour or misconduct; or
(c) Incompetence.

The procedure for the removal is provided under article 144 (3-7). A judicial Officer is free to retire
at any time on attaining the age of 65 but in any case for the case of a CJ at the age of 75, the
Principal Judge of the HC on attaining the age of 65 and in each case, subject to article 128 (7), on
attaining such other age as may be prescribed by Parliament by law.60

Thus in the case of Fox Odoi & anor v. AG, the Constitutional Court held that the procedure for the
removal from office of a judicial officer u/s.144 (2) of the Constitution is that a tribunal must be
appointed to investigate the question of removal of a judicial officer from office. The question of
appointment of the investigating tribunal must be referred to the President by a specific body. It is
only when the tribunal recommends a removal that the President can proceed to effect the removal of
the judicial officer. This is the only procedure to be followed and no other procedure is permissible.

59
Constitutional Case no. 3/97
60
See article 144 (1)

79
The court went on to point out that the effect of ss.19 (1) and 20 (1) of the Leadership Code Act
which enjoin the president to implement the decision of the IGG to remove an officer from office is
to fetter the discretion accorded to the President under the Constitution in the question of removal of
officers c/arts. 60 (8) and 169 (9) of the Constitution.

PRIVILEGES OF JUDICIAL OFFICES:

The issue in the case of Masalu Musene Wilson & Ors v AG,61 touched on the taxation of the salary
of some Judicial Officers and as to whether any taxation thereto was constitutional. The brief
background to the Petition was that Petitioners, the first one being a Registrar of the Supreme Court,
the second being a Chief Magistrate and the third and fourth being Magistrates Grade one and two
respectively sought to challenge certain provisions of the Income Tax Act (Cap. 340) as being
unconstitutional for taxing their salaries, allowances, privileges, retirement benefits and other
conditions of services of Judicial Officers.

The brief history to the petition was that during pre-1995 Constitution period, when the Cabinet
realized the erosive effect taxation was having on the poor pay of the Justices and Judges, it decided
to grant then an exemption from taxation to relieve them of their financial worries. This was done
u/s.12 (2) of the Income Tax Decree, 1974. The privilege was extended for the period of 1990-1997
but was not extended to other judicial officers including the petitioners. The Income Tax Act
(hereinafter referred to as the ITA) was silent on the exemption but the Justices and Judges were
exempted under the Constitution. This exemption did not however extend to other judicial officers
including the new Judges, thus this petition challenging the application of s. 4 (1) of the ITA to
judicial Officers and the interpretation accorded to arts. 128 (7) and 254 (2) as being inconsistent
with art.128 (7) of the Constitution, which is all embracing of judicial officers.

The Constitutional Court held inter alia that

(I) When the Petitioner’s fixed salaries are taxed at the end of the month, such taxation has
the effect of reducing, diminishing them naturally, varying them and changing them from
what they were indicated to be in their letters of appointment when they were stated to be
fixed, to a reduced or diminished state which is to their detriment or disadvantage.
61
Constitutional Petition no. 5/04

80
 Therefore, by taxing the salary or emoluments of a judicial officer, the end result
cannot amount to anything else other than to a variation and a reduction or a diminution of
such income;

(II) While it is the duty of every citizen to play certain roles in the society u/art. 17 of the
Constitution, the judicial officer’s role and duties are unique and different. Judicial officers
are charged with safeguarding the fundamental rights and freedoms of the citizenry. In the
performance of their duties, they are entrusted with checking the excesses of the executive
and the legislature. These duties require insulation from any influence, direct/ indirect that
may warp their judgment or cause them to play into the hands of corrupt elements
especially when there is a climate of political excitement;

(III) The administration of justice is the firmest pillar of Government. The independence of the
judicial officers is of far greater importance than any revenue that could come from taxing
their salaries. An independent judicial officer is indispensable to the administration of
impartial justice and the rule of law. It is therefore important to appreciate the importance
and significance of the entire art. 128;

(IV) The underlying principle of the entire art. 128 is the issue of judicial independence and
security of tenure, the latter being among the traditional safeguards of the former. This
means among other things that the term, office, emoluments and other conditions of
service of judicial officers generally shall not he varied or altered to their detriment or
disadvantage. This is an elementary safeguard to be found in most developed legal systems
where it took many historic struggles to establish on a firm footing as the most
fundamental of all safeguards of judicial officers’ security of tenure;

(V) When whittling away the provisions of the article destroys the elementary safeguard, and
128 (7) and judicial officers are put at the sufferance of the executive or at the whims of
the legislature, the independence of the judiciary is the first victim. The rational of art. 128
(7) is that there should be adequate salaries and pensions for judicial officers
commensurable with status, dignity and responsibility of office. Poor or inadequate
remuneration gives ground to another cause of corruption, for there are many other causes.
By the nature of their work, judicial officers cannot engage in other business activities so
as to bridge the financial vacuum besetting them. Corruption will therefore be natured by a

81
 system that fails to pay its judicial officers well and insulate them from the corrupting
public;

(VI) The maintenance of judicial independence u/ art. 128 depends upon public support for the
judicial process to run effectively and independently. It is the public respect for that
principle that sustains it. By ‘public’ is meant the Government to reinforce and facilitate
the effectiveness of the judiciary. The system that expects its judicial officers to lead
decent lives and is often saying so at all public fora but at the same time fails to enforce the
constitutional protection applicable to them is bound to render the independence of the
judiciary unattainable as the corruption vermin would quickly set in;

(VII) Without undiminishable or untaxable remuneration or compensation, the principle of

independence of the judiciary and of security of tenure will have become nugatory and a
mere mockery. Instead of attracting to the bench a succession of learned men and women
from their lucrative private chambers, the bench will become impoverished and starved of
capable, competent men and women.;

(VIII) Due to the rapid and constituent inflationary erosion of the value of money, it is not
sufficient to merely adhere to the historic formula that judicial emoluments shall not be
reduced, altered or varied to the detriment of judicial officers. What is necessary is to
provide independent machinery and a fair formula to ensure that judicial emoluments and
pensions are effectively augmented to neutralize inflation and thus free judicial officers of
the financial anxieties, which enslave them;

(IX) Within the context of art. 128 (7), ‘judicial officer’ would mean the Justices of the
Supreme Court, Court of Appeal, Judges of the High Court, Registrars and Magistrates.

APPOINTMENT AND THE ROLE OF THE JUDICIAL SERVICE COMMISSION AND

PARLIAMENT IN THE SELECTION OF JUDGES

The case of Justice Letitcia Mukasa-Kikonyogo

The case of Justice Remigio Kasule

82
 ACCESS AND SPEED OF DETERMINATION OF A CASE

62
In the case of Charles Onyango-Obbo & Andrew Mujuni Mwenda v. AG Justice Mulenga
referred to the preliminary order made by the Constitutional Court to stay the hearing of the
constitutional petition pending disposal of the criminal case against the appellants in the magistrate’s
court. “The court made the order at its own initiative, notwithstanding the unanimous view expressed
by counsel on both sides. The Court stated that the petition should proceed before the criminal trial.”
The grounds for doing so were that the purpose of the petition was to ‘circumvent or even pre-empt
the criminal prosecution.’ The court relied on the case of Arutu John v. AG63. However, Justice
Mulenga stated, “with the greatest respect to the Constitutional Court that order was misconceived,
and inconsistent with the letter and spirit of the Constitution. Under Article 137, any person may
access the Constitutional Court in either of two ways (directly under Clause 3, or if it has been
referred to it by another court (other than a field court martial) under Clause 5. In any event, under
Clause 7, the court must proceed to hear and determine the petition as soon as possible and may, for
that purpose, suspend any other matter pending before it. And furthermore, where a court refers a
question that arises in proceedings before it, it must await the decision of the question by the
Constitutional Court, and ‘dispose of the case in accordance with that decision.’ ”

Mulenga concluded by stating that,

“The rationale for these provisions is obvious. The Constitution is the basic law from which all laws
and actions derive their validity. Where the constitutional validity of any law or action awaits
determination by the Constitutional Court, it is important to expedite the determination in order to
avoid applying a law or taking action whose validity is questionable.”

INTERPRETATION Vs. ENFORCEMENT

The Constitution gives provision for redress where a constitutional right has been violated. There are
however two distinct ways of proceeding to court and while one such way is under article 50, the

62
Supreme Court Constitutional Appeal no. 2/02
63
Constitutional Petition no. 4/97

83
other is under article 137 of the Constitution. The judiciary has adequately dealt with the difference
between the two articles.

Several cases have been referred to the Constitutional Court in which the issue of interpretation
versus enforcement of the Constitution was at stake. In the case of Isaac Busulwa & 2 ors. v. AG 64
the Constitutional Court stated that the “question of whether or not an arrest and detention were
lawful or not could be resolved by any court of competent jurisdiction under Article 50 of the
Constitution.”

In the case of Joyce Nakacwa v. A.G & Ors65, the petitioner proceeded to the Constitutional Court
U/art. 137 of the Constitution alleging inter alia that her rights had been violated when she was
denied maternity care and was forced to walk while still bleeding and weak from the delivery and her
clothing all stained with blood.

When the petition came up for hearing, counsel for the respondent raised preliminary objections
touching on the jurisdiction of the court to entertain the petition and the competency of the petition.
In drawing a distinction between matters falling under articles 50 and 137 of the Constitution, the
Constitutional Court held that allegations made to the Constitutional Court, if they are in conformity
with articles 137 (3), give rise to the interpretation of the Constitution and the court has the
jurisdiction to entertain them. That, “the petitioner is alleging that the conduct of the medical council
has violated her rights guaranteed under specified provisions of the Constitution. In order to give a
declaration on the matter, this court must determine the meaning of the alleged violated provisions
and whether the conduct complained of actually violates them. The carrying out of this exercise by
court is the interpretation of the Constitution and not the enforcement of rights and freedoms. The
Constitution does not require a constitutional interpretation to determine whether a person’s
constitutional rights have been violated for example if it is established that the person was arrested
without cause and detained for more than 24 hours without being taken to Court. It is a matter of
drawing an inference, which can be done by a competent court. In that case, an application for
redress would be better entertained U/art. 50 of the Constitution. The Constitutional Court has
jurisdiction to entertain matters that would otherwise fall U/ art. 50 if this is done in the process of a
Constitutional interpretation U/art. 137 of the Constitution. ”

64
Constitutional Petition no. 1/02
65
Constitutional Petition no. 2/2002

84
The court thus concluded that for the enforcement of the rights and freedoms u/art. 50, one has to
seek redress in a competent court. ‘This is not one because it derives its jurisdiction from art. 137.
The petitioners should have proceeded only u/art. 137 (3) and not under both arts. 137 and 50 for
both cater for different situations.’

The law applicable in matters of the interpretation of the Constitution under article 137 (3) of the
Constitution has been ably laid down in the case of Uganda Journalists Safety Committee & Ors v
AG 66. Court was also trying to draw a distinction in relation to the law applicable in matters falling
under article 137 (3) and 137 (5) of the Constitution. In this way, Court pointed out that the rules of
procedure for proceeding to the Constitutional Court are prescribed by Legal Notice 4/96 and are
cited as ‘The Rules of the Constitutional Court (Petitions for Declarations u/ art. 137 of the
Constitution) Directions, 1996.

The Constitutional Court went on to point out that however, where the Constitutional Court is
exercising its jurisdiction u/art. 137 (5) to interpret the Constitution pursuant to a reference from a
lower court, different rules apply. These are cited as ‘The Interpretation of the Constitution
(Procedure) Rules, 1992 (Modification) Directions, 1996, u/ LN no. 3/96.’ They are modified from
S.1 25/92, ‘The Interpretation of the Constitution (Procedure) Rules, 1992.’

Therefore, u/ art. 137, the Constitutional Court can sit to interpret the Constitution u/art. 137 (3) at
the instance of a party as in the instant case or u/art. 137 (5) on any question referred to it arising out
of proceedings in any court of law other than a Field Court Martial.

In relation to the procedure to be adopted when proceeding to Court under article 50 of the
Constitution, Court held that Parliament has not yet made laws u/art. 50 (4). Therefore, u/art. 273, the
usual rules of procedure applicable to any courts of Judicature do apply as existing u/rule 13 of LN
4/96 except where any question for interpretation arises and is referred to the Constitutional Court
u/art. 137 (5) (b). The rules applicable are contained in the schedule to LN 3/96 and are cited as the
‘Interpretation of the Constitution (Procedure) Rules, 1992 (Modifications) Directions, 1996.

The case of Paul Kawanga Semogerere v. AG67 sought to challenge the validity of the Referendum
(Political Systems) Act, 2000 for having been passed without following the proper procedures and

66
Constitutional Petition no. 7/97
67
Constitutional Petition no. 3/00

85
time frame laid down in the Constitution of Uganda. Court held that the right to challenge an Act of
Parliament or any other is provided U/article 137 (3) of the Constitution. The article empowers any
person who alleges that an Act of Parliament, or any other law or anything in or done under the
authority of any law is inconsistent with or in contravention of a provision of the Constitution to
challenge it in the Constitutional Court. Therefore, the allegation that the holding of the Referendum
on June 29, 2000 was inconsistent with article 69 falls U/art. 137 (3).

Furthermore, a system set in place by or under an Act of Parliament or any law can be challenged u/
article 137 of the Constitution at anytime not withstanding the repeal or expiry of the Act.
In the case of Philip Karugaba v. AG,68 one of the issues concerned the extent of the jurisdiction of
the Constitutional Court. The Petition sought to challenge r. 15 of the Rules of the Constitutional
Court (Petition for Declarations U/art. 137 of the Constitution), Directions, 1996 as being
inconsistent with article 26 (2) of the Constitution. The rules, it was alleged denied the estate of a
deceased litigant of the right to continue with the case thus depriving it of the right to property.

The Constitutional Court held inter alia that the jurisdiction of the Constitutional Court U/ art. 137 is
to interpret the Constitution and not to grant redress.

Further more, court pointed out that where the estate of the deceased petitioner seeks redress, the
action can be instituted in a court of competent jurisdiction and if a question of constitutional
interpretation arises, the same can be referred to this court U/art. 137 (5) of the Constitution.

That in the instant case therefore, the deceased was seeking for ‘compensation’ or redress for
unlawful imprisonment, pain and suffering, embarrassment, humiliation and loss of her child. A civil
action can be instituted in a competent court for redress and not for constitutional interpretation.

The case of Dr. James Rwanyarare & anor v. AG69 sought to attack inter alia the Constitutionality
of the President of the Republic of Uganda. At the commencement of the hearing, counsel for the
respondent raised preliminary objections attacking Court’s jurisdiction to entertain the petition and its
lack of competency to entertain the petition.

68
Constitutional Petition 11/02
69

86
The Constitutional Court held that the Constitutional Court was created u/art.137 to deal with
questions relating to the interpretation of the Constitution. Declarations by this Court can only be
brought u/art. 137 and rule 3 (1) of Legal Notice no. 4/96. Petitions for the enforcement of rights and
freedoms u/art. 50 do not belong to the Constitutional Court. The Constitutional Court only deals
with matters falling under the article by way of reference made u/art.137 (5).

In the case of Haruna Kanabi v. Uganda,70 the Chief Magistrate who tried the case at first instance
having been confronted with the question of the interpretation of the Constitution in relation to the
offence of sedition as against article 29 of the Constitution ignored the aspect of the interpretation of
the Constitution. On appeal, the High Court by way of per incurim observed that the trial Magistrate
had pointed out by way of per incurium that ‘there was need for matters like this one to be referred to
a Constitutional Court to determine what is demonstrably justifiable in a free and democratic society
and put Uganda in line with the position of other
Jurisdictions.’ The High Court thus observed:

‘From what the said Magistrate wrote on pages 6 & 7 of her judgment what seems to have been
troubling her as she penned the above post-script was not the interpretation of the 1995 Constitution
but what she saw as a conflict between the offence of sedition as it stands u/Ss. 41 and 42 of the PCA
on the other hand and the provisions of the 1995 Constitution relating to freedom of speech, press,
etc on the other as guaranteed u/arts. 29(1)(a) and 43(1). While questions as to the interpretation of
the 1995 Constitution arising in any proceedings in a court of law other that a Field Court Martial
are supposed to be dealt with by such court by way of referring them first to the Constitutional Court
for a decision u/art. 137 (5) of the 1995 Constitution, an issue where someone is alleging that a given
Act of Parliament is in conflict with the said Constitution is supposed to be referred to the
Constitutional Court by such individual by way of a petition u/art 137 (3) of the said Constitution.

Since the trial Magistrate’s problem above in my view falls under the second category, she ought to
have petitioned the Constitutional Court in her personal capacity in respect of the matter. The good
thing is that the door is still open for her to do so even now. Just in case I am wrong and the said
problem is either one of pure constitutional interpretation, a mixture of the interpretation of the 1995
Constitution and conflict of it with the said provisions of the Penal Code Act which ought to be
referred by Court to the Constitutional Court for interpretation, I would again submit that because

70
Criminal Appeal 72/95

87
the said problem arose during the hearing of the original case, the trial Magistrate who herself
raised it ought to have referred it to the Constitutional Court u/ art. 137(5) of the said Constitution.
I would further add that this court would be under no obligation to refer the said matter now to the
Constitutional court since the same never arose before it in the sense that first of all, I do not share
the Chief Magistrate’s fears concerning Ss. 41 and 42 of the PCA vis-à-vis the Constitution. And
secondly, none of the parties before me during the appeal ever indicated that they wanted any matter
to be resolved by the Constitutional Court before this appeal was disposed of.”

The case of Charles Mubiru v. AG71 emphasizes that for the Constitutional Court to have
jurisdiction, the petition must on its face show that interpretation of the Constitution is required.

In the case of Charles Kabagambe v. UEB,72 the petitioner sought to challenge the manner of his
dismissal from employment as inconstent with article 42 of the Constitution.

When the matter came up for hearing, counsel for the respondent raised the issue of the court’s
jurisdiction to entertain the petition as the matters raised did not touch on the interpretation of the
Constitution.’

The Constitutional Court held that:

1. The resolution of the issues raised in the petition does not require the interpretation of art. 42 and
for that matter, any provision of the Constitution;
2. A person who seeks to enforce a right or freedom guaranteed under the Constitution by claiming
redress for its infringement or threatened infringement but whose claim does not call for the
interpretation of the Constitution has to apply to any competent court. The Constitutional Court is
competent for that purpose only upon the determination of a petition under art. 137;
3. It is now settled law that if a matter does not require an interpretation of a provision of the
Constitution, there is no juristic scope for the invocation of the jurisdiction of the Constitutional
Court. In the instant case, the petitioner alleges that his rights were violated and claims a
declaration and redress. On the facts available, one cannot rule out wrongful dismissal. This is a
matter dealt with by specific laws. A competent court can enforce such laws and should a

71
Constitutional Petition no. 1/01
72
Constitutional Petition no. 2/99

88
 question of interpretation of the Constitution arises, that question can always be referred to this
court.

In the case of Dr. James Rwanyarare & anor v. A.G,73 the Constitutional Court held that “the
Constitutional Court was created under article 137 to deal with questions relating to the
interpretation of the Constitution. Declarations by this Court can only be brought under articles 137
and rule 3 (1) of Legal Notice no. 4/96. Petitions for the enforcement of rights and freedoms under
article 50 do not belong to the Constitutional Court. The Constitutional Court only deals with
matters falling under the article by way of reference made under article 137 (5).”

In the case of Serapio Rukundo v. A.G74, an issue arose before the Constitutional Court as to the
procedure to adopt where a question as to the interpretation of the Constitution arises in criminal or
civil proceedings in a court. The Constitutional Court held that in such a case, the trial or appellant
court does not have to stop the proceedings in that case and file a petition in the Constitutional Court
seeking to resolve that Constitutional issue. The proper course is to proceed with the case and raise
the issue in the course of the hearing and then a reference of the issue would be made after the
evidence sufficient to substantiate the claim is recorded.

A similar situation arose in the case of Arutu John v. A.G75. The petitioner was charged with the
offences of Abuse of Office C/S. 83 of the Penal Code Act in the Magistrate’s Court. Before the case
went for trial, the Petitioner filed a Constitutional Petition objecting to the criminal proceedings
against him and pleading that he enjoyed judicial immunity from prosecution U/Art. 128 (4) of the
Constitution and S.15 of the Penal Code Act which in effect render the proceedings against him a
nullity. Before the Petition was heard, the criminal case against the Petitioner went for trial and
Counsel for the Petitioner raised the same objection of the judicial immunity enjoyed by the
applicant. A reference was thus made to the Constitutional Court.

In the course of hearing the two cases, an issue arose in the Constitutional Court as to inter alia the
procedure to adopt if there is a criminal trial pending before a Criminal Court and a Constitutional
Reference is made to the Constitutional Court while a Constitution Petition has already been filed
with the Constitutional Court, both cases touching on the same subject matter.

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Constitutional Petition 11/97
74
Constitutional case no. 3/97
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Constitutional Petition no. 4/97

89
The Constitutional Court held that “ the proper course to adopt in circumstances where a criminal
trial or civil case is pending before another Court and a Constitutional Reference is made to the
Constitutional Court while a Constitution Petition has already been filed with the same court, both
cases touching on the same subject matter should be to defer the petition and remit the reference to
the trial Court with an Order to the trial court to continue with the proceedings as soon as it is
practicable and if justified on the evidence before it, make a reference to the Constitutional Court.”

But an aggrieved party who is not satisfied with a decision of court and desires to proceed under
article 137-(3) (b) does not have a locus standi in the Constitutional Court. This was the decision
reached by the Constitutional court in the case of Serapio Rukundo v. A.G76. The petitioner who
claimed to be affected by the decision reached by the Court of Appeal in the case of Bakunda
77
Darlington v. Dr. Kinyatta Stanley & anor sought to proceed to the Constitutional Court under
article 137-(3) (b). The Constitutional Court explained that “the act complained of’ U/art. 137 if it is
a decision of court can only be challenged by way of appeal if the law gives the aggrieved party such
right. This is so because the power to interpret statues is vested in the courts. Therefore, a decision of
a final court has no remedy in the Constitutional Court, as the latter court is not an appellate court.”

The case of Uganda Law Society & anor v. A.G78 pointed out another important aspect of the
jurisdiction of the Constitutional Court in matters of the interpretation of the Constitution. The
petition sought to challenge the constitutionally of the Constitution (Amendment) Act, no. 13/2000.

The Constitutional Court held that “the Constitutional Court has the jurisdiction to interpret an Act
amending the Constitution. Even when the Act becomes part of the Constitution, it still remains an
Act of parliament and can therefore be challenged in the Court.”

The right to petition the Constitutional Court for interpretation of the Constitution is not limited to
only individuals and citizens but extends to any ‘any person.79’
Finally, in the case of A.G v. Osotraco Ltd,80 the Court of Appeal pointed out that

76
Constitutional case no. 3/97
77
Court of Appeal Civil Appeal no. 27/96
78
Constitutional Petition no. 8/2000
79
See article 137
80
Civil Appeal 32/02

90
“Art. 273 of the Constitution empowers all courts to modify existing unjust laws without necessarily
having to refer all such cases to the Constitutional Court. The provision enables the court to expedite
justice by construing unjust and archaic laws and bringing them into conformity with the
Constitution, so that they do not exist and are void. The article does not however oust the jurisdiction
of the Constitutional Court u/ art. 137 where it can later declare these law as unconstitutional.”

In the case of Kyamanywa Simon v. Uganda81, the Supreme Court having been confronted with the
question of the interpretation of the Constitution that had arisen in the course of hearing the appeal
from sentence from the Court of Appeal held inter alia that it is the Constitutional Court, which has
jurisdiction in matters of interpretation of the Constitution. It also has original jurisdiction in cases
where a person seeks a declaration that an Act of Parliament is inconsistent with a provision of the
Constitution.

The Supreme Court went on to hold that ‘after the Constitutional Court has given its decision on the
question referred to it, this Court will dispose of the appeal before it not as the Constitutional
Appellant Court, but as a Court before which the question arose. It will have to dispose of the appeal
in accordance with the decision of the Constitutional Court on the question.’

In case the decision of the Constitutional Court on the question is appealed against, the Supreme
Court held that then such an appeal would come to it in its jurisdiction as the appellant Constitutional
Court consisting of all the members of the Court. In case the decision of the Constitutional Court on
the question referred to it is not appealed, then such a decision would stand as the law until it is over-
turned or upheld on appeal by the appellate Court in another case.

It is imperative to observe that there are two kinds of laws that might infringe on the Constitution
under article 137-(3) (b). Existing law and law that has come into force after the enactment of the
1995 Constitution. The Constitutional court looks at these laws differently. Thus, in the case of
Pyarali Abdul Kasule Ismail v. Adrian Sibo 82 the applicant sought to challenge the provisions of
the Expropriated Properties Act83, passed in 1982 as unconstitutional for depriving him of his right to
property. This was because the aforementioned Act nullified the sale of the suit property to the
defendant and all dealings of any kind in properties which had been expropriated under the Assets of

81
Criminal Appeal no. 16/1999
82
Constitutional case no. 9/97
83
Act no. 9/82

91
Departed Asians Decree,84 of 1973 and instead returned it to the respondent, an Asian. The
Constitutional Court in looking at the Expropriated Properties Act in the face of article 26 of the
Constitution held that Act 9/82 must be “construed with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring it in conformity with the 1995
Constitution.”

The Constitutional Court went on the observe that the Expropriated Properties Act 1982 may have
had a few provisions contrary to the provisions of the 1967 Constitution especially S. 11 (4) and (6)
of the Act. However, since that Constitution is no more, the Act is good law. Offending sections of
that act like section 11 (4) and (6) must be construed so as to conform to the provisions of article 26
of the 1995 Constitution.

How is the Constitution interpreted?

The Constitutional Court is under article 137 vested with the jurisdiction to interpret Acts of
Parliament and even declare them unconstitutional. Such Acts also extend to Acts to amend the
Constitution. This was held in the case of Uganda Law Society & anor v. A.G85 where one of the
points of contention was whether the Constitutional Court had the jurisdiction to pronounce
themselves on the legality of the Constitutional (Amendment Act) no. 13/2000. The Constitutional
Court held itself as having the jurisdiction to interpret an Act amending the Constitution. “Even when
the Act becomes part of the Constitution, it still remains an Act of parliament and can therefore be
challenged in the Court.” The case of Joyce Nakacwa v. A.G86 the Constitutional Court pointed out
that allegations made to the Constitutional Court, if in conformity with articles 137 (3), give rise to
the interpretation of the Constitution and the court has the jurisdiction to entertain them. That the
petitioner’s allegation that the conduct of the medical council had violated her rights guaranteed
under specified provisions of the Constitution required the determination of the meaning of the
84
no. 27/1973
85 ?
h Constitutional Petition no. 8/2000
86
Constitutional Petition 2/2001

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alleged violated provisions and whether the conduct complained if actually violates them. The
carrying out of this exercise by court is the interpretation of the Constitution and not the enforcement
of rights and freedoms.

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION:

In the case of Joseph Tumushabe v. A.G,87 the Constitutional Court tried to lay down some of the
rules followed when interpreting the Constitution.

The Constitutional Court observed that it is trite law that when interpreting the Constitution, it must
be looked at as a whole. The principles of Constitutional interpretation demand that the Constitution
must be read as an integrated whole with no one particular provision destroying another but each
supporting the other. No one provision is to be segregated from all others and considered alone. All
provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to
effectuate the greater purpose of the instrument.

In the case of Salvatori & anor v. AG88 the petition sought to challenge certain sections of the
Witchcraft Act as unconstitutional.
The Constitutional Court held that
(I) The rules applicable to the interpretation of statutes apply to the construction of constitutional
provisions only that a Constitutional provision should be given liberal construction, unfettered
with technicalities in regard to human rights and freedoms;
(II) The ‘purpose and effect’ principle entails the Court considering both the purpose and effect of
an impugned statute to determine its constitutionality. Where the purpose of the statute
infringes on a constitutional right, the statute is declared unconstitutional and where the
purpose of the statute is purportedly within the Constitution, court still goes further to
examine its effects.
(III) A statute, which purports to encroach on a personal or proprietary right of a citizen, is to be
construed strictly. The effects of the Exclusion Order are that s. 7 of the Witchcraft Act is in
conflict with arts. 24 and 44 of the Constitution.
(IV) The validity of any law or custom depends on its passing the test laid down by art. 2 of the
Constitution. Art. 28 (12) requires the definition of an offence and its prescription by law.

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Constitutional Petition 6/04
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Constitutional Petition no. 2/97

93
 Any vague interpretation fails to satisfy the requirement. S.3 of the Act fails to adequately
define what it holds as amounting to witchcraft. Thus, the process employed lacks
definiteness and might end up netting people who are vaguely undesirable in the eyes of the
law.
(V) Before declaring a statute vague, court must first develop the full interpretative context
surrounding an impugned provision. Court’s task is to decide whether the impugned statute
provides sufficient basis for legal debate as to the scope of the conduct prohibited.

In the case of Zachary Olum & anor v. AG89 the petition sought inter alia a declaration to the effect
that s.15 of the National Assembly (Powers and Privileges) Act; Cap 249(hereinafter referred to as
Cap. 249) is unconstitutional for prohibiting Members of Parliament and certain employees of
Parliament from using evidence of proceedings in the Assembly or its Committees elsewhere without
the special leave of the Assembly having first been obtained.
The Constitutional Court held that:

1. Principles that govern the construction of statutes also apply to the construction of Constitutional
provisions.
2. The rule of harmony, completeness, exhaustiveness and paramountacy of the Constitution is to
the effect that the Constitution has to be read as an integrated whole and no one particular
provision destroying the other but each sustaining the other.
3. All provisions of the Constitution concerning an issue should be considered together. The
Constitution must be looked at as a whole. However, sight must not be lost of the spirit of our
Constitution that is the establishment and promotion of a just, free and democratic society.
4. The values and principles essential to a free and democratic society must guide the Court, which
include inter alia the inherent dignity of human rights.
5. The burden is on the state to prove that the information sought to be used by a Member or Officer
of Parliament as evidence is within the restrictions of art. 41 (1) and so derogable.

Further more, in the case of Masalu Musene Wilson & Ors v. AG, 90 the Constitutional Court held
that in interpreting the Constitution, where words or phrases are clear and unambiguous, they must be
given their primary, plain, ordinary or natural meaning. The language used must be construed in its
natural and ordinary meaning. The sense must be that, which the words used ordinarily bore at the

89
Constitutional Petition no. 6/99
90
Constitutional Petition no. 5/04

94
time when the statute was passed. All provisions of the Constitution concerning an issue should be
considered together. The Constitution must be looked at as a whole.
The Constitution has to be given a generous rather than a legalistic interpretation, aimed at fulfilling
the purpose of the guarantee and securing the individuals the full benefit of the Instrument. Both the
purpose and effect of the legislation must be given effect to.

In the case of Joseph Tumushabe v AG91 the Petitioner sought to challenge inter alia the procedure
of the General Court Martial in trying suspects and its refusal to respect the rights of prisoners in
trials before the Court especially the right to bail.

The Constitutional Court held that

It is trite law that when interpreting the Constitution, it must be looked at as a whole. The principles
of Constitutional interpretation demand that the Constitution must be read as an integrated whole
with no one particular provision destroying another but each supporting the other. No one provision
is to be segregated from all others and considered alone. All provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate the greater purpose of the
instrument.

The case of A.G v. Osotraco Ltd,92 the Court of Appeal pointed out that when construing the
‘existing law’ such has to be in line with the thinking or norms of progressive society.

In the case of Dimanche Sharon & Ors v. the Makerere University 93, the Constitutional Court held
that inter alia:

I. When interpreting the Constitution, all provisions of the Constitution concerning an issue are
to be considered together, each one supporting the other so as to give effect to the purpose of
the Constitution.
II. Constitutional provisions are to be accorded a generous and purposive construction especially
the part protecting the fundamental human rights and freedoms. The interpretation should not
be legalistic so that fundamental and human rights are accorded maximum protection.
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Constitutional Petition 6/04
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Civil Appeal 32/02
93
Constitutional Cause 1/03

95
III. Derogations from fundamental human rights should be given a narrow and strict construction;
IV. The standard of proof applied in cases of constitutional interpretation is on a balance of
probabilities;
V. It is incumbent upon the petitioners to show that they are entitled to the remedies sought on
the ground that their fundamental and human rights have been infringed by the respondent’s
policy. However, the respondent must show justification for a lawful derogation from such
fundamental rights within the ambit of article 43;
VI. Both the purpose and effect of the policy impugned must be examined to determine its
validity or invalidity.

In Suzan Kigula & 416 v. AG94, the Constitutional Court held that it is a well known rule of
interpretation that to take away a right given by common law or statute, the legislature should do that
in clear terms devoid of any ambiguity. The right to life is not included in art.44 on the list of the
non-derogable rights. Therefore, arts. 24 (dealing with freedom from torture, cruel, inhuman or
degrading treatment or punishment) and 44 could not have been intended to apply to the death
penalty permitted in art. 22 (1)

In the case of Fox Odoi & anor v. AG,95 the Constitutional Court held that in determining the
constitutionality of a legislation or acts or omission of an authority, the principle of ‘purposes and
effects’ must be considered. If the purpose or effect of implementing a provision of an Act is
inconsistent with a provision of the Act, the Act shall be declared unconstitutional.

RULES OF INTERPRETATION OF STUTES

LITERAL RULE

The Plain meaning rule, also known as the literal rule.

It is a type of statutory construction, which dictates that statutes are to be interpreted using the
ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms

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Constitutional Petition 6/03
95
Constitutional Petition 8/2003

96
otherwise. In other words, the law is to be read word for word and should not divert from its true
meaning. It is the mechanism that underlines textualism and, to a certain extent, originalism.

The plain meaning rule attempts to guide courts faced with litigation that turns on the meaning of a
term not defined by the statute, or on that of a word found within a definition itself.

According to the plain meaning rule, absent a contrary definition within the statute, words must be
given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even
though the intention of the legislator may have been different or the result is harsh or undesirable.
The literal rule is what the law says instead of what the law was intended to say.

REASONS FOR THE RULE

1. Proponents of the plain meaning rule claim that it prevents courts from taking sides in
legislative or political issues. They also point out that ordinary people and lawyers do not
have extensive access to secondary sources.
2. In probate law the rule is also favored because the testator is typically not around to indicate
what interpretation of a will is appropriate. Therefore, it is argued, extrinsic evidence should
not be allowed to vary the words used by the testator or their meaning. It can help to provide
for consistency in interpretation.

3. This is the oldest of the rules of construction and is still used today, primarily because judges
may not legislate. As there is always the danger that a particular interpretation may be the
equivalent of making law, some judges prefer to adhere to the law's literal wording.

DEMERITS

Opponents of the plain meaning rule claim that the rule rests on the erroneous assumption that words
have a fixed meaning. In fact, words are imprecise, leading justices to impose their own prejudices to
determine the meaning of a statute. However, since little else is offered as an alternative discretion-
confining theory, plain meaning survives.

Golden rule (law)

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This is a form of statutory interpretation that allows a judge to depart from a word's normal meaning
in order to avoid an absurd result.

The rule gives the words of a statute their plain, ordinary meaning. However, when this may lead to
an irrational result that is unlikely to be the legislature's intention, the judge can depart from this
meaning.

Becke v Smith (1836) 2 M&W 195 per Parke B, it was stated:-

It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words
used, and to the grammatical construction, unless that is at variance with the intention of the
legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in
which case the language may be varied or modified so as to avoid such inconvenience but no further.

Similarly, Lord Wensleydale in Grey v. Pearson (1857) 6 HL Cas 61, 106; 10ER 1216, 1234, who
said:

In construing statutes, and all written instruments, the grammatical and ordinary sense of the words is
to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to
avoid that absurdity or inconsistency, but not farther.

Mischief Rule:-

The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to
discover Parliament's intention. It essentially asks the question: By creating an Act of Parliament
what was the "mischief" that the previous law did not cover?

This was set out in Heydon's Case [1584] 3 CO REP 7a. Where it was stated that there were four
points to be taken into consideration when interpreting a statute:

1. What was the common law before the making of the act?
2. What was the "mischief and defect" for which the common law did not provide?
3. What was the remedy the parliament hath resolved and appointed to cure the disease of the
commonwealth?

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 4. What is the true reason of the remedy?

The application of this rule gives the judge more discretion than the literal and the golden rule as it
allows him to effectively decide on Parliament's intent. It can be argued that this undermines
Parliament's supremacy and is undemocratic as it takes law-making decisions away from the
legislature.

The rule was illustrated in the case of Smith v Hughes [1960] 2 All E.R. 859, where under the Street
Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of
prostitution". The defendants were calling to men in the street from balconies and tapping on
windows. They claimed they were not guilty as they were not in the "street." The judge applied the
mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover
the mischief of harassment from prostitutes.

AIDS TO CONSTRUCTION.

1. Internal aids:-
a. The long Title

The long title as opposed to the short title, is the formal title of an act of Parliament or a bill that
appears at the beginning of every act and provides a description of the purposes or scope of the act.

For that reason, the long title tends to be rather vague, ending with the formulation "and for
connected purposes". The long title seldom affects the operative provisions of an Act, except where
the operative provisions are unclear or ambiguous and the long title provides a clear statement of the
legislature's intention.

The Long title is a very important part of the act in the face of doubt and ambiguity, the long title can
be looked into to clear either or both of them. Lord Moulton in Vacher Vs London Society of
compositors said the title is part of the act its self and its legitimate as a purpose of interpreting of
the act as a whole and to ascertaining its scope.

In Felden Vs Morley corp, Lindey M R while refering to the public authorities protection act said “I
read the title advisably because now and for some years to pass of an act of parliament has been part
of the act…. The title is an important part of the act”.

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Example of a Long Title:-
“An Act to provide for the procedure by which a private landowner who has no reasonable means
of access to a public highway may apply for leave to construct a road of access to a public highway
and for other purposes connected therewith.”
Ref: Access to Roads Act Cap 350

b. The short title.

The short title is the formal name by which a piece of primary legislation is usually referred to. It
contrasts with the long title which, while usually being more fully descriptive of the legislation's
purpose and effects, is generally too unwieldy for most uses.

For example, the short title THE ACCESS TO ROADS ACT Cap 350 contrasts with the long title
“An Act to provide for the procedure by which a private landowner who has no reasonable means
of access to a public highway may apply for leave to construct a road of access to a public highway
and for other purposes connected therewith.”

In Re Boaler it was held that you can draw some reference from the short title.

c. The preamble [object of the legislature ] some statutes start with reciting the objects of the
statute.

A preliminary or introductory statement, especially attached to a statute or constitution setting forth

its purpose.

In the AG Vs Prince of Hanover, this case raises issues whether the statute of 1705 which attempted
to neutralize all issues of the princess Sophia without any limit as to time that could be cut down, by
reference to the preamble so as to affect those issues alive at the death of the queen Ann. The House
of Lords held that as the statute was clear, the pre-course couldn’t be had to the preamble. “When
there is a preamble it is generally in the recitals that the mischief to be remedied and the scope of the
act are described. It is therefore permissible to have the course to it as an aid in construing the
enacting provision. The preamble isn’t over however of the same weight as an Aid to the constructing

100
of the section of the act as are other relevant enacting words to be found else where in the act or in
related acts”.

d. The marginal notes: - some help may be taken from the side notes in case of ambiguity. {Musa
and ors Vs rep}

e. Punctuation: -
Up to the 1960’s, courts couldn’t look at punctuations as an aim to constriction e.g. Inland Revenue
commission Vs Hichy; it says you should ignore punctuations while reading the statutes. But in New
Great Insurance Co of India V Gross [1966] EA 90, it was that you could punctuate while reading
the statutes.
F. The heading.
Some laws have headings which are pre-fixed to sections or sets of sections and are regarded as
preambles to those sections. In DPP V Schild kamp it was held that you can rely on the heading for
the purpose of explaining doubtful expressions in the body of the section.
G. The Proviso
These are expressions of clauses or qualification in an act. They except something out of or qualify
something in the enactment which but before them would be in the act, e.g. “provided that”…”this
section doesn’t apply”
Thomas V Dildin, it was held that a proviso must be considered in relation to the principle matter
which stands as a proviso. It must be construed not as if it were a parallel positive enactment but as a
limitation on the proposition which in turn is direct and objective.

2. External Aid to Construction. (Materials outside the act itself).

1. A judge may rely on a dictionary for interpretation, e.g. R V Peters [1886] 16 OBD 636- it
says dictionaries aren’t to be taken as authoritative exponents of the words used in the act of
parliament but it’s a well-known rule of courts of law that words should be taken to be used in
their ordinary sense and therefore sent for instructions of their books.

2. Textbooks: - a textbook writer of established repute may have great influence on the
construction of a statute especially if the statute contains no interpretation clause of its own.
Although textbooks don’t make law, they show whether a principle has been generally

101
 accepted. In Basset V Basset the court relied on the practice of convience as to construction
of a section of an act.

Hansards.
These are recordings of the parliamentary proceedings. In Besiuek V Besuiek it was held
that we can’t refer to the Hansard. This means the debate in parliament about passing a bill
are met admissible in court. Neither the debates in parliament on the bill by which the act
was passed nor the history of the changes which the bill underwent before being enacted
nor the reports of the commission which proceeded the act under consideration are
admissible as showing intent though there may be evidence to the surrounding
circumstances under which the act was passed.

In Katikiro of Buganda V AG the Privy Council refused to consider the contents of the white
paper in construing constitutional legislation.

QUESTION: What rules would you use to interpret the Constitution?

A Constitution of a state refers to the basic and fundamental principles which the inhabitants of the
state consider to be essential for their governance and wellbeing. [1] A Constitution lays down
political and other state institutions and distributes powers among them and puts limitations on the
exercise of those powers.

In most countries, the fundamental laws of the land are contained in one document or a series of
documents for which the word ‘Constitution’ is reserved, but in a few countries like the United
Kingdom of Great Britain and Northern Ireland, there is no single document which embraces all
these rules or which can be referred to specifically as the Constitution of the state. Nevertheless, such
countries have Constitutions because the word ‘constitution’ is a legal expression which identifies all
the elements of how a country is organised and governed.[2] The difference between the two is one of
form rather than substance.

[1]
Prof. G.W. Kanyeihamba; Constitutional Law and Governance in Uganda.
[2]
Ibid 1

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It should be noted that the nature of the Constitution depends on the character of the country for
which it is intended to govern. There are a number of factors which will have a bearing on the
growth, evolution and formulation of a Constitution.

The country’s historical, geographical positions, her social structure, her political, economic
development, religious beliefs as well as her racial and tribal composition all play a part in
formulation, growth and evolution. If a Constitution is to work, it must fulfil the intended purpose
and this can be achieved through informed and guided decisions reached at using tools of
interpretation.

Constitutional interpretation or construction is the process by which meanings are assigned to words
in a constitution to enable legal decisions to be made that are justified by it. [3] There is a question
whether the meanings should be taken from the public meanings shared among the literate populace,
the private meanings used among the drafters and ratifiers that might not have been widely shared or
the public legal meanings of the terms that were best known by the framers of the Constitution.

In Constitutional interpretation, we must note that constitutional terms are not empirical objects, so
must as ideas, that is, mental models that do not for the most part have the advantage of some formal
scientific form of being representable in mathematical or computer formalism that we can examine
externally. In particular, they are ideas that existed in the minds of persons long dead or are very old
to impact our current society, so we must develop mental models of their mental models “theories of
mind” based on things they read and wrote.
Constitutional controversies are about whether an official Act with authorities by a Constitution has
been interpreted rightly in arriving at a decision.

Since a Constitution is a law and a supreme law within its domain and authorises statutes and other
official Acts which have a contextual expression then Constitutional interpretation is essential.

Article 2(2) of the Constitution if the Republic of Uganda states that;

If any law or any custom is inconsistent with any of the provisions of this Constitution, the
Constitution shall prevail, and that other law or custom shall, to the extent of its inconsistency be
void.
[3]
www.wikipedia.en

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Therefore given that all other laws derive their authority from the Constitution, it must be interpreted
with a lot of precision and caution. In Troop v. Dulles [4] where a decision of the Supreme Court was
reached at and Justice Wallen C.J stated that;

“The provisions of the Constitution are not time worn adages. They are vital living principles that
authorise and limit government powers in our nation. When the constitutionality of congress is
challenged in court, we must apply these rules. If we do not, the words of the constitution become a
little more than good advice”

Most legal scholars and jurists recognise several theories and principles in constitutional
interpretations, although they may differ on what each includes, there is an overlap among them.
Some of the theories that have been advanced include the following:

The textualist and strict construction approach; this suggests that decisions should be based on
the actual words written in the law if the meaning of the words is unambiguous. Since a law is a
command, then it must mean what it means to the law giver and if the meaning of the words used in
it have changed since it was issued then the textual analysis must be of the words as understood by
the law giver which for a constitution would be the understanding of the ratifying convention.

A central argument for the subscribers of textualism and strict construction is that less strict
interpretations of the constitution can become a method of legislative activism by judges which they
feel is an abuse of judicial power. This concern might be phrased as ‘making the law to say what you
think it should say rather than submitting to what it does say.’ This would be a form of judicial
usurping the legislative power. The Supreme Court’s power for constitutional review and extension
of its interpretation was essentially self assigned in Marbug v. Madison[5]

Originalist Approach; Originalism is a family of theories central to all of which is the proposition
that the constitution has a fixed and knowable meaning which was established at the time of its
drafting. The theories include; the ‘original intent’ theory which holds that interpretation of written
constitution is (should be) consistent with what was meant by those who drafted and ratified it. The
[4]
356 US 2 LEd. 785 at 590 (1956)
[5]
SUS (Cranch 1) 137 (1803)

104
‘original meaning’ theory which is closely related to textualism is the view that interpretation of the
written constitution or law should be based on what reasonable persons living at the time of its
adoption would have declared the ordinary meaning of the text to be. It is with this view that most
originalists are associated with textualists. It is often asserted that originalism is synonymous with a
textualist and strict constructionalist approach. In Smith v. United States[6] Justice Scalia
differentiates the two by pointing out that unlike an originalist, a strict constructionalist would not
acknowledge that, ‘He uses a cane’ means ‘He walks with a cane’ because strictly speaking this is
not what ‘He uses a cane’ means. Scalia has asserted that he is ‘not a strict constructionist and no one
ought to be;’ He goes further calling strict constructionalism a degraded form of textualism that
brings the whole philosophy of interpretation into dispute.

To put the difference more explicit, both schools take the plain meaning of the text as their starting
point but have different approaches. For a strict constructionalist, the specific strict reading of a text
is the beginning and end of the inquiry. For an originalist however, the text is the beginning of the
inquiry and two originalists might reach very different results not only from the strict
constructionalist, but from each other[7].

Contextualist approach; This is also concerned with the text itself to those who wrote the text but
instead of subjective intent, it seeks to examine the broad context in which the provision at issue was
promulgated, arguing that in some important aspects, respect, the provision can only be understood
relative to its context.

This context can be through examining why the provision is located where it is in the whole
document and also focussing on the broad long history to determine the broadest possible intent.
Historical contextualsim was the main theory of interpretation that the Supreme Court used resulting
in such decisions as in Plessy v. Ferguson where the holding upheld racial segregation because the
broad historical context of the 13th and 14th amendment did not support the idea that they were
intended to prevent states from separating races. In the case of De Clerk and Suct v. Du Plassis and
Another[8], the Supreme Court of South Africa stated that;

[6]
508 US 223 (1993)
[7]
A. Scalia; A Matter of interpretation, ISBN O-691-00400-5 Amy Guttman Ed. 1997, pp.23
[8]
[1994] 6 BLR 124 at 129

105
“When interpreting the constitution and more especially the Bill of Rights, it has to be done against
the backdrop of our repressive history in the human rights field.”

One main proponent of contextualism, Chief Justice William Howard Taft, explained that;
“The language of the constitution cannot be interpreted safely except by reference to the Common
Law and to British institutions as they were when the instrument was framed and adopted.”

Opponents of contextualism often argue that pure contextualism outlook prohibits the constitution
from adapting to different culture, technology and social developments.

Pragmatic approach; This theory is founded on the idea of judge-made law doctrine but goes
further to enlarge the interpretation aspect to be elastic enough to include broader historical events,
practices, usages and political culture. It tends to focus on how the meaning came into being hence
the idea of constitutional growth and evolution. Chief Justice Tarl Warren exemplified this when he
said the constitution needs to be interpreted in light of the evolving standards of decency that mark
the process of a maturing society. A common criticism to this approach is that it makes a constitution
‘mean nothing’ because it holds that it can mean anything. First, the pragmatic view contends that
interpreting the constitution with long out-dated views is often unacceptable as a policy matter and
thus that an evolving interpretation is necessary. In Osotraco Ltd v. AG[9], where Justice Egonda
Ntende said;

“The rationale for the proviso (b) to sec.15 of the Government proceedings Act lies in the historical
relationship between the Crown and the courts of England in terms of constitutional theory. This
constitutional theory was explained by Lord Diplock in the following words in Jaundoo v. AG of
Grenada[10] ‘At the time of hearing a motion in the High Court, an injunction against the
government of Guyana would thus have been an injunction against the Crown. Thus a court in
Her Majesty’s dominion had no jurisdiction to grant. The reason for this in constitutional theory is
that the court exercises its judicial authority on behalf of the Crown. Accordingly, any orders of
the court are themselves made on behalf of the Crown and it is incongruous that the Crown should
give orders to itself.’ He continued to say that Article 126 of the Constitution is even clear on the
authority of judicial power and how it is to be exercised. It is definitely not on behalf of the crown or

[9]
HCCS No.00-CV-CS-1380 of 1986 [2002] UGHC
[10]
[1971] AC 972

106
successors to it. It is states to be derived from the people and shall be exercised in names of the
people and in conformity with the law, values and aspirations of the people.”

This is in marked contrast with the Constitutional theory that exposes the view that courts examine
authority in behalf of the Crown and its successors.

Having discussed the principles of constitutional interpretation, it is important to discuss the

principles followed in the interpretation of a constitution

The constitution should be interpreted as a whole

It was settled by the Supreme court of the U.S “that no single provision of the constitution is to be
segregated from the others and to be considered alone but that all provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effect the greater
purpose of the instrument[11].”

In the case of Maj. Gen .David Tinyefuza v A.G[12], court held that the entire constitution has to be
read as an integrated whole and no one particular provision destroying the other but each sustaining
the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of
supremacy of the written constitution. Manyindo D.C.J observed that of the principle as follows
“The entire constitution has to be read as an integrated whole and no one particular provision
destroying the other but each sustaining the other. This is the rule of harmony completeness and
exhaustiveness and the rule of paramouncy of the constitution.

On appeal Oder J.S.C expressed the same view in this way. Another important principle governing
interpretation of the Constitution concerning an issue should be considered all together. The
constitution must be looked at as a whole. Therefore” …the constitution being a logical whole, each
of the provisions is an integral part thereof and it is therefore logically proper and indeed imperative,
to construe one part in the light of the provisions of the other part”[13]

[11]
South Dakota v North Carolina 192 US 268 (1940) 448
[12]
Constitutional Petition No.1
[13]
Gopalan v State of Madras (1950) SCR 88 at 109

107
Indeed all the provisions of the constitution concerning an issue should be considered together. In
doing so, sight must not be lost of the spirit of our constitution which is the establishment and
promotion of a just and free society.

Therefore in law, the constitution as a wholesome legal document and all provisions must be
regarded as constituting it. The normal logic in this canon is that in order to ascertain the true
meaning and intention of the legislators, all relevant provisions must be considered. It’s thus
dangerous to consider any particular article in isolation of all others and any court which tries to do
this is bound to get an inconsistent conclusion. [14]. Thus decisions are to be based on analysis of the
structures the law constituted and how they are apparently intended to function as a coherent,
harmonious system for no one can properly understand a part until he has read the whole [15]. It
would seem this canon embodies practically all the theoretical temperaments.

The Meaningful and Effective rule of interpretation

Where the language of the constitution is imprecise or ambiguous, then liberal, flexible and
purposive interpretation must be given to cure the ambiguity.

The rationale for this is that the Constitution is not an ordinary statute capable of amendment as and
when legislators choose. In Salvatori Abuki v A.G[16] Okello J held that “if the purpose of the
statute infringes a right guaranteed by the constitution, that impugned statute is also declared
unconstitutional”[17] .In R v Big Drug Mart ltd the supreme court stated that “the interpretation
should be a generous one rather than a legalistic one aimed at fulfilling the purpose of the guarantee
and securing for individuals the full benefit of the charter’s protection’’. [18]Thus the courts should
construe the constitution “not in narrow and legalistic way but broadly and purposively so as to give
effect to its spirit and this is particularly true of provisions which are concerned with the protection of
constitutional rights.[19].The generous construction means that courts “must interpret the constitution
in such a way as not to whittle down any of the rights of freedom unless by very clear and
unambiguous words such interpretation is compelling”[20].

[14]
See Paul kawanga Ssemogere v A.G no 3 of 1999
[15]
3 Coke Rep. 59
[16]
Const. petition no. 2 of 1997
[17]
A similar provision was held by court in Zachary Olum & anor v A.G const. petition no.6 of 1999
[18]
This was further enunciated in A.G v Mamadou Jobe (1984) A.C 689
[19]
A.G v Whiteman (1991) 2 WLR 1200at 1204
[20]
Unity Dow v A.G of Bostwana (1992) LRC(const) 623 at 668

108
Thus to give this flexible, purposive and interpretation without having to amend the constitution, the
meaning of a phrase or term to accord it with the legislative effect. This was applied with equal force
to the right of life as protected under the Constitution of Uganda case Salvatori Abuki v A.G [21].In
this case the petitioners were banished from their homes for 10years after serving a prison sentence
for contravention of the Witchcraft Act. The Constitutional Court struck down the Act as being
unconstitutional and inconsistent with the constitution which guaranteed citizens from cruel, inhuman
or degrading treatment. Court took judicial notice of the fact that most people in Uganda live in rural
areas and survive on land. Court considered that banishment provisions denied the petitioners access
to land and that such a person would be rendered a destitute upon leaving prison. The constitution
permits a broader purposive approach by providing in article 126 that “Judicial power is derived from
the people and shall be exercised by the courts established under this constitution in the name of the
people and in conformity with the law and with the values, norms and aspirations of the people”.

Narrow Construction to be preferred in case of derogation from a guaranteed right

It is not in doubt that, save for the rights mentioned in article 44 which are stated to be non –
degradable, the rest can be limited. But the power to do so is not to be arbitrary exercised by courts.
Indeed under Article 43, it stated that in the enjoyment of the rights and freedoms prescribed in this
chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or
the public interest. This ordinarily means that a victim of infringement has to do is to plead that his
right has been violated unreasonably. Once he does this, the burden shifts to the alleged infringer to
prove that this was in the circumstances reasonable and justified.

In Charles Onyango Obbo & Andrew Mwenda v A.G[22], the two petitioning journalists were
charged with publication of false news contrary to section 50 of the Penal Code Act. Justice Mulenga
espoused the fact that the protection of guaranteed rights is the primary objective of the constitution
and the limitation of their enjoyment is an exception to their protection and is a secondary objective.
Although the constitution provides for both, it is obvious that the primary objective must be
dominant. It can only be overridden in exceptional circumstances that give rise to that secondary
objective. He stated that the criteria to be satisfied includes
(a) The legislative objective which the limitation is designed to promote
(b) The measures designed to meet the objective must be rationally connected to it and not arbitrary
unfair or based on irrational considerations
[21]
Const. Petition no. 2 of 1997
[22]
Const. appeal no. 2 of 2002

109
(c) The means used to impair the right or freedom must be no more than necessary to accomplish the
objective. In his observation there were two interests to be balanced. The freedom of expression and
that of the country as a democratic society let alone protection of the public. In the instant case, the
derogation of the petitioner’s rights didn’t fulfil the three canons since such deprivation could only be
invoked in public interest if there was real danger and not merely speculative or conjectural danger or
alarm. Thus in limiting this rights, court further took observance of the presuppose existence of
universal democratic principles to which every society adheres. While there may be variations in
application the democratic values and principles remain the same. Therefore for any legislation
which seeks to limit rights in Uganda is not valid under the constitution unless it is in accordance
with those universal principles

The preamble and the national objectives and directives of the state must when necessary be
taken into account to supply the intention of the framers.
Critically, this must be done without violating the meanings of the words used. The simple rationale
to this canon is that the rights granted by the constitution do not exist in a vacuum, and are not an end
in themselves. They are granted upon a given background and it would be lethal for any court to
interpret the provisions in total segregation of the preamble and the directive principles. In Uganda,
the basic importance of this was stated by Egonda Ntende J. in Tinyenfuza v. AG[23] wherein he
stated that;

“The binding values in this constitutional dispensation are clearly set forth in the preamble. These
are unity, peace, equality, democracy, freedom, social justice and progress. In order to ensure that
all citizens, organs and agencies of the state never lose sight of those values and are firmly guided by
these values in all our actions, a statement of National objectives and Directives and state policy was
set forth. The first paragraph states, the following objectives and principles shall hide all organs of
the state...and persons applying or interpreting this constitution or any other law...for the
establishment and promotion of a just, free and democratic society. That ought to be our first canon
of construction of this constitution. It provides an immediate break or departure with past rules of
constitutional construction.”

This is further given life by Article 126 which recognises that judicial power is recognised by the
courts in accordance with the constitution and in conformity with the law and with values, norms and

[23]
Constitutional Petition No.1 1997

110
aspirations of the people It was held by Kanyeihamba JSC, in AG v. Major Gen David
Tinyefunza[24] that;
“It is therefore important to know and appreciate the historical and constitutional background to the
Uganda constitution and the manner in which it carefully demarcated responsibilities and functions
among the various institutions of the state to given sets of facts and circumstances.”
Oder JSC, also shared a similar view and added that the preamble and the directives must always be
born in mind and noted that the preamble refers to the struggle of the people of Uganda against the
forces of tyranny, oppression and exploitation. The same was done by the Supreme Court of South
Africa in De Clerk ans Suct v. Du Plessis and Another[25].
Where words are clear and unambiguous, they must be given their plain, ordinary and natural
meaning.
Such language must be given its common and ordinary sense which means that they must be given
the natural sense which they bore before the Constitution came into force. In Carnies book on Statute
Law (6th Ed) 66, wherein the learned author stated that the cardinal rule of construction of Acts of
Parliament is that it should be construed according to the situation expressed in the Acts themselves.
The tribunal that has to construe an Act of the Legislature or indeed any other document has to
determine the intention as expressed by the words. If the words of the statute are themselves precise
and unambiguous, then more can be necessary than to expound those words in their ordinary and
natural sense. The words themselves do in such a case best declare the intention of the law giver.
Where the language of the Act is clear and explicit, we must give effect to it whatever may be the
consequence for in that case the words of the statute speak the intention of the Legislature.

The Sui Generis Rule;

The word ‘sui generis’ means ‘in a class of its own’. The Constitution stands on a very different
footing from other legislation even though in fact the principles which govern other legislation for the
most part (but not always) also govern the interpretation of the constitution. It is the only reason why
all other laws are subjected to it and why they are declared null and void to the extent that they are
inconsistent with it. Ref. Article 2(2) of the Constitution. It is also the reason why the language used
is much broader and encompassing than that used by all other statutes. It is intended to cover rights
and freedoms for all people without discrimination and because it is made for present generations and
those unborn.

[24]
Supra 11
[25]
Supra 8

111
The Constitution must be interpreted as a living document;
This canon enjoins the courts to interpret the constitution having in mind present day circumstances.
It also means that it is meant to cater for both the present generation and those unborn. In Unity Dow
v. AG of Bostwana, it was remarked that;

“The Constitution is the supreme law of the land and is meant to serve not only this generation but
generations yet unborn. It cannot allow to be a lifeless museum piece. On the other hand the courts
must breathe life into it as occasion may arise to assure the healthy growth of the state through it. We
must not shy away from the basic fact that while a particular construction of a constitutional
provision may be able to meet the designs of the society of a certain age...it is the primary duty of
judges to make the constitution grow and develop in order to meet the just demands and aspirations
of an ever developing society which is part of the wider society governed by acceptable concepts of
human dignity.”

This is meant to imply that the Constitution should be able to serve for a long time while
accommodating the new changes the world has to offer without derogating from the original framers
intent. This can further be witnessed in Hunter v. Southern Inc, where Dickson said;
“A constitution is drafted with an eye to the future.”

A Constitution must be capable of growth and development over time to meet social, political and
historical realities often unimagined by its framers. However, it must be noted that the constitution
should move with times steadily and not to be destroyed by times.

Fundamental rights are inherent and not granted by the state;

Fundamental human rights are not gifts from the state [28]. As Egonda Ntende J explained that this
provision by stating that these rights are inherent , the constitution is recognizing their inherent
existence to that extent they must be looked at in a different light from other rights created the
law.[29]They inhere in a person by reason of his birth and therefore prior to the state and law. This
means that these rights are not gifts from the state. [30]Courts have taken cognizance of principle in
the interpretation of the constitution.

[28]
Article 20(1)
[29]
Tinyefuza v A.G supra pp.15 of his statement
[30]
This was annunciated by Lugakingta J in Rev. Christopher Mtikila v A.G of Tanzania Civil Case
No. 5 of 1993

112
Where the rules of practice are rigidly applied will defeat the process of giving effect to
guaranteed rights they must be reasonably relaxed;
This is perhaps best supported by Article 126 (2)(e) which requires courts of law to dispense
substantive justice without any undue technicalities. Accordingly, it is the merits or substance of the
petition and not the procedural technicalities that count. In Tinyenfuza v. AG [31] Manyindo DCJ,
stated that;

“The case before us relates to the fundamental rights and freedoms of the individual, which are
enshrined and protected by the constitution. It would be highly improper to deny him a hearing on
technical or procedural grounds. I would even go further and say that even where the respondent
objects to the petition as in this case, the matter should proceed to trial on the merits unless it does
not disclose a cause of action at all. This court should readily apply the provision of Article 126 (2)
(e) of the constitution of a case like this and administer substantive justice without undue regard to
technicalities.”

This means that the constitution is there not to condemn but to reconcile. This can also be illustrated
in AG v. Susan Kigula and 417 Others [32].
International Human Rights Convention and treaties may be used in interpretation;
This canon was well summarised in Unity Dow v. AG [33] wherein the court remarked that although
it is common view that conventions do not confer rights on individuals within the state until
Parliament has legislated them and incorporated within common law, those conventions may be
referred to as an aid to construction of the constitution and that it would be wrong for the courts to
interpret its legislation in a manner which conflicts with international obligations.
The rationale is that whether ratified or not, these conventions contain universally recognised human
rights too which no civilised nation can derogate from.
Even when they are yet to be ratified, it is the clear duty of court to speed up this process by using
them in interpretation of this constitution.

The harmonisation of conflict principle;

This means that where two constructions are possible and one is very restrictive of the guaranteed
rights and the other permissive then the latter is to be preferred of the two. In Mtikila v. AG of

[31]
Supra 12
[32]
SC Const. App. No.3 2006
[33]
(1992) LRC 623

113
Tanzania[34] the court was encountered with conflicting constitutional provisions. The Tanzanian
constitution granted every citizen the right to participate in the governance of the country and the
right not to be compelled to belong to or subscribe to a political party. However, an amendment was
passed which barred any citizen from running any political office unless they were members and
recognised parties. In holding that these two provisions read together could not bar independent
candidates from standing held that;

“When a provision of the constitution enacting a fundamental right appears to be in conflict with
another provision of the constitution...the principle of harmonisation has to be called in aid. The
principle holds that the entire constitution has to be read as an integrated whole and no one
provision destroying the other but each sustaining the other...if the balancing Act should succeed, the
Court is enjoined to give effect toll the contending provisions. Otherwise the court is enjoined to
incline to the realisation of fundamental rights and may for that purpose disregard the clear words of
a provision if their application would result in gross injustice...These propositions rest above all on
the realisation that it is the fundamental rights which are fundamental and not the restrictions.”

In conclusion therefore, the principles of constitutional interpretation were summarised in the case of
Charles Onyango Obbo and Andrew Mujuni Mwenda v. AG Const. Pet. 15 1997 /21/07/2000.
Twinomujuni JA [pp.7-10] enumerated the various principles of constitutional interpretation referring
to a number of cases; Maj. Gen. David Tinyefuza (supra), Zachar Olum and Anor. V. AG (supra),
and Dr. James Rwanyarare and Anor. V. AG (supra). He asserted that the principles of
constitutional interpretation can be summarised as follows; principles of interpretation applicable to
statutory construction also apply to the construction of constitutional instruments, words must be
given their natural and ordinary meaning where they are not ambiguous, the instrument being
considered must be treated as a whole and all provisions having bearing on the subject matter in
dispute must be considered together s an integrated whole, provisions relating to the fundamental
human rights and freedoms should be given purposive and generous interpretation in such a way as to
secure maximum enjoyment of rights and freedoms guaranteed and where the state or any person or
authority seeks to do an act or pass any law which derogates on the enjoyment of fundamental rights
and freedoms guaranteed under Cap 4 of the constitution, the burden is on that person or authority
seeking the derogation to show that the act or law is acceptable within the derogations permitted
under Article 43 of the Constitution.

[34]
Civil case no.5 of 1993

114
 PROCEDURE v. SUBSTANTIVE JUSTICE

‘Did the Constituent Assembly delegates intend to wipe out rules of procedure by enacting article
126 (2) (e) of the Constitution’ is a question that rocked the Courts in the wake of the 1995
Constitution. Also known as ‘the lazy Counsel’s whip/ excuse’, this was a new provision in the
supreme law of the land and many advocates thought that they would get around to beating the once
rigid rules of procedure and win their clients cases. There were thus a number of cases that battled it
our with the judges as to the proper course to adopt in the face of ‘technicalities’ and the
technicalities that were envisages by the Constitute Assembly delegates in enacting the relevant
provision. The Courts labored to differentiate between matters they regarded as ‘fatal’ and those that
they viewed as technicalities.96

In the case of Dr. James Rwanyarare & anor v. A.G 97, the issue of the intended meaning of article
126 (2) (e) was addressed by the Constitutional Court. The petitioners in seeking to avoid rules of
procedure relied on article 126-(2) (e) as emphasizing substantive justice in the face of technicalities.
The Constitutional Court lay down the principle that Article 126-(2) (e) has not done away with the

96
See the case of Uganda Law Society & anor v. A.G, Constitutional Petition no. 8/2000.
97
Constitutional Petition 11/97

115
requirement for litigants to comply with the rules of procedure of litigation. The Article merely gives
constitutional force to the well-known and long established principle at common law that rules of
procedure act as handmaidens of Justice. Justice cannot be properly administered without following
important rules of procedure.

In the case of Serapio Rukundo v. AG98 the one who felt aggrieved by the ruling of the Court of
Appeal in Civil Case no.27/1996, Bakunda Darlington v. Dr. Kinyatta Stanley & Anor that an
affidavit commissioned by an advocate without a valid practicing certificate is invalid proceeded to
the Constitutional Court. The petitioner claimed to be affected by that ruling and attacked it as being
inconsistent with art. 126 (2) (e) of the Constitution.

The Constitutional Court held inter alia that while it is true that when entertaining Constitutional
Matters particularly on questions of human rights, courts should ignore minor irregularities, it is
important that rules of procedure should be followed to ensure smooth and predictable conduct of
Constitutional petitions.

The Court also pointed out that the purpose of the requirement u/r. 4 (1) of the Fundamental Rights
and Freedom (Enforcement Procedures) Rules), 1992, Directions, 1996 requiring the lodging of a
petition within 30 days after the breach of the Constitution complained of takes into account inter alia
the importance of Constitutional cases which must be attended to expeditiously and seeks to cut out
stale cases. Therefore, the time limit also takes into consideration Constitutional petitions.

The Court further observed that objections touching on the irregularities pertaining to the supporting
affidavit and in respect of violation of fundamental rights of an individual are distinguishable from
objections touching on the fundamental points of law going to the root of the case. This is so because
points of law if decided in one way are decisive of litigation so that Rules of Court ought to be taken
advantage of in order to dispose of the pleadings immediately or very shortly after the close of the
pleadings.

In the case of Joyce Nakacwa v. AG & Ors99 the petitioner’s claim was inter alia that her rights had
been violated when she was denied maternity care and was forced to walk while still bleeding and
weak from the delivery and her clothing all stained with blood. She however filed her petition outside

98
Constitutional Case no. 3/97
99
Constitutional Petition no. 2/01

116
the time limit for Constitutional Petitions claiming that she was incapacitated from filing in time as
she had been imprisoned soon after the violation of her human rights.

The Constitutional Court held inter alia that “the petition is not time barred since the petitioner
cannot be expected to have started contemplating legal action when she had no idea what had
happened to her child. Moreover, she was released from police custody on police bond on June 25 th
2001 but had not yet been discharged from the bond obligations to date. She filed this petition on
July 27th 2001 and so acted within time.”

Commenting on the thirty days rule, the Court held that ‘the thirty days rule on limitation of the
filing of petitions having been enacted under the authority of an Act of Parliament remains good law
and until it is successfully challenged Court.’

Thus, in the case of the Uganda Law Society & anor v. A.G100 the Constitutional Court held failure
to state who signed the first petition and the capacity in which he/she signed as a matter of
technicality that is not fatal in view of article 126 (2) (e) of the Constitution.

In the case of Serapio Rukundo v. A.G101 at the hearing of the petition, counsel for the respondent
raised a preliminary objection that the petition and the accompanying affidavit were defective having
been drawn by an advocate lacking a valid practicing certificate. This objection was overruled but
two days later, the Court of Appeal in Bakunda’s102 case ruled that an affidavit commissioned by an
advocate without a valid practicing certificate is invalid. It is on the basis of that decision that the
petitioner brought this petition. The Constitutional Court in addressing the objection held that “while
it is true that when entertaining Constitutional matters particularly on questions of human rights,
courts should ignore minor irregularities, it is important that rules of procedure should be followed
to ensure smooth and predictable conduct of Constitutional petitions.”

There is a thirty days rule on limitation of the filing of constitutional petitions 103. In the case Serapio
104
Rukundo v. A.G, the Constitutional Court held that The purpose of the requirement U/r. 4 (1) of
the Fundamental Rights and Freedom (Enforcement Procedures) Rules), 1992, Directions, 1996
100
Constitutional Petition no. 8/2000
101
Constitutional case no. 3/97
102
Court of Appeal Civil Appeal no. 27/96
103
Rules of the Constitutional Court (Petitions for Declarations under article 137 of the Constitution) Directions,
1996, rule 4.
104
Constitutional Case no. 3/97

117
requiring the lodging of a petition within 30 days after the breach of the Constitution complained of
takes into account inter alia the importance of Constitutional cases which must be attended to
expeditiously and seeks to cut out stale cases. Therefore, the time limit also takes into consideration
Constitutional petitions.

In the case of Al Haji Nasser Ntege Sebaggala v. A.G & Ors 105, the Constitutional Court held that
Rule 4 (1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure)
Rules 1992 Direction prescribes thirty days within which to lodge a petition after the date of the
breach of the Constitution complained of in the petition. A Constitution Petition is therefore
incompetent if it is brought out of time unless the time has been extended and that where a period of
limitation is imposed, it begins to run from the date on which the cause of action accrues. If the plaint
does not plead disability as an exemption from the limitations required by Order 7, Rule 6 of the
Civil Procedure Rules which is coached in mandatory terms, failure to do so is fatal to the claim
outside limitation.

METHODS OF AMENDING THE CONSTITUTION.

[Articles 259-263]

There are three ways in which the Constitution can be amended:

1. expressly;
2. By necessarily implication;
3. By infection.

Thus, in the case of Fox Odoi & anor v. A.G,106 the Constitutional Court pointed out that if an Act
of Parliament has the effect of adding to, varying or repealing any provision of the Constitution, then
the Act is said to have amended the affected article of the Constitution. There is no difference
whether the Act is an ordinary Act of Parliament or an Act intended to amend the Constitution. The
amendment may be effected expressly, by implication or by infection as long as the result is to add to
vary or repeal a provision of the Constitution. It is not material whether the amending Act states
categorically that the Act is intended to affect a specified provision of the Constitution. It is the effect
of the amendment that matters.

105
Constitutional Petition 1/99
106
Constitutional Petition 8/2003

118
In the case of Serapio Rukundo v. A.G107 the Constitutional Court held that the remedy to amend an
offending law lies with Parliament and not with courts. This in essence also included amending a
Constitutional provision.

Query: Once an Act of Parliament has amended Constitutional Provision, does the Act of Parliament
disappear into the Constitution or does it remain an Act of Parliament?

In the case of Paul Kawanga Ssemwogerere & Ors v. AG 108 the Petition sought to challenge the
Constitutional (Amendment) Act of 2000 and the procedure adopted by Parliament when enacting it.

The background to the petition is that in August 28, 2000, a bill known as the Constitutional
(Amendment) Bill, no. 16/2000 to amend arts. 88-90 was published in the Uganda Gazette and
passed into law as the Constitutional (Amendment) Act 13/ 2000 in September 1, 2000 and assented
to on the same day. And in addition to the amended articles that had been gazetted, the Act also
mentioned arts. 97 & 257 as amended and also inserted a new art. 267A into the Constitution, none of
which had been gazetted. The petitioners aggrieved by the manner in which Parliament passed the
Act filed this petition to challenge its constitutionality for failure to comply with the procedure set
out in the Constitution for the amendment of the Constitution.

The Constitutional Court held that:

1. There is a difference between a Constitutional Amendment Act and an ordinary Act. Once the
correct procedure for enacting a Constitutional Amendment Act is complied with, its provisions
become part and parcel of the Constitution and cannot be challenged in this Court. This Court
would not have jurisdiction to construe parts of the Constitution as against the rest of the
Constitution. All that this Court would do was to determine whether the challenged Act was
enacted in accordance with the procedure for enacting constitutional amendments;

2. Constitutional amendments under chapter 18 of the Constitution are classified in three categories.
The first one falls u/art. 258, the second one u/ 259 and the last one u/art. 260. Each of those
categories has its own procedure. While those passed u/ art. 258 are the general amendments and
do not require the holding of a Referendum or approval of the Districts, those passed u/art. 259

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 require the support at the second and third readings in Parliament by not less than 2/3 of all
members of Parliament and have to be referred to a decision of the people and approved in a
referendum. Amendments passed u/art. 260 on the other hand require inter alia the approval of
the Districts;

3. The Constitution does not provide for a special procedure to be followed by Parliament when
enacting Constitution Amendment Acts other than those u/arts. 259 & 260. It only makes
provision for Parliament to make its own Rules u/art. 4 (1). There was therefore nothing to stop
Parliament from applying its own rules. Parliament has powers to waive any requirement of its
rules where a particular bill is considered urgent;

4. It is the duty of the Speaker to issue the accompanying Certificate and send it to the President but
failure to attach the Speaker’s Certificate to the Bill is not fatal to the validity of the Act. The
provision for the attaching of the Certificate were intended to save the President from signing for
something not legally passed by Parliament. It was not the intention of the legislators to render
the law passed by Parliament void as the issuance of a Certificate is a mere procedural and
administrative requirement, which does not go to the root of the law making process;

5. There was also no need to accompany the Amendment Act with a Certificate of the Electoral
Commission as the requirement applies only to amendment u/ arts. 259 & 260 but not u/art.258
which is relevant to the present petition;

6. The amendment of art. 97 did not result in the amendment of arts. 41 (1) & 44 of the
Constitution. The amendment was not linked to other articles, which had not been specifically
amended.

HUMAN RIGHTS AND THEIR ENFORCIBILITY:

The Constitution provides for human rights but only makes a few of them absolute. Thus, in the case
of Dimanche Sharon & ors v. Makerere University 109 three Makerere University Seventh Day
Adventist Students brought an action in the Constitutional Court against the University seeking inter
alia a declaration U/art. 137 that the respondent policy and regulations of scheduling lectures,
mandatory tests and examinations on the seventh day are inconsistent with and in contravention of
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article 20, 29(1)(c), 30 and 37 of the Constitution in respect of petitioners who practice the Seventh
Day Adventist Christian faith.

The petitioners prayed for inter alia an exemption from the application and implementation of the
respondent’s educational policy in as far as it applies to them.

The Constitutional court held that it is trite law that human rights and freedoms must be enjoyed
within limits as provided under article 43 of the Constitution. Consequently, human rights are not
absolute but enforceable within reasonable limits. When interpreting the Constitution, all provisions
of the Constitution concerning an issue are to be considered together, each one supporting the other
so as to give effect to the purpose of the Constitution. Constitutional provisions are to be accorded a
generous and purposive construction especially the part protecting the fundamental human rights and
freedoms. The interpretation should not be legalistic so that fundamental and human rights are
accorded maximum protection. Derogations from fundamental human rights should be given a
narrow and strict construction.

It is incumbent upon the petitioners to show that they are entitled to the remedies sought on the
ground that their fundamental and human rights have been infringed by the respondent’s policy.
However, the respondent must show justification for a lawful derogation from such fundamental
rights within the ambit of article 43. Article 20(7) gives religious equality but not immunity from
observance of the law. Religious freedom is therefore not an absolute fundamental human right.

In the case of Zachary Olum & anor v. A.G110 the Constitutional Court held Fair hearing connotes
that in accordance with the law, a party is given the necessary opportunity to canvass all such facts as
are necessary to establish his case. The right to a fair hearing is not derogable.

In the case of A.G v. Osotraco Ltd,111 the Court held that since the 1995 Constitution, the rights,
powers and immunities of the State are not immutable anymore. Article 20 enjoins everybody
including Government agencies to protect and respect individual fundamental human rights. The
Constitution has primacy over all other laws and the historic common law doctrines restricting the
liability of the State should not be allowed to stand in the way of constitutional protection of
fundamental rights.

110
Constitutional Petition 6/99.
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THE RIGHT TO EQUALITY AND FREEDOM FROM DISCRIMINATION (article 21)

Article 21 deals with the right to equality and freedom from discrimination. This provision can be
said to be the foundation of the entire bill of rights under Chapter 4. Clause 2 elaborates on the
grounds of discrimination prohibited by the freedom from discrimination of race, colour, tribe,
religion, political opinion and disability. The essence of this right is that citizens as individuals or
groups should be treated in the same manner irrespective of their peculiar characteristics and
backgrounds or situations.

In the case of Maliam Adekur & Anor v. Joshua & the AG 112 the petitioners sought to make the
Attorney General liable for the actions of the Magistrate who had tried them following their arrest.
The brief background to the petition is that the first petitioner, refused to be inherited by her brother -
in law pursuant to the Iteso local customs and instead eloped with the second petitioner was arrested
and charged before a Magistrate’s Court. The petitioners alleged inter alia that the Magistrate failed
to protect their constitutional right to marry each other to the exclusion of any custom.

Counsel for the petitioners argued that the second respondent u/art. 250 of the Constitution was liable
for the acts of the Judicial Officer, the Magistrate who perhaps failed to protect the petitioner’s rights.

The Constitutional Court held that a person exercising judicial power shall not be liable to any action
or suit for any act or omission by that person in the exercise of judicial power. The Magistrate was
therefore not guilty of any omission or wrongdoing.

In UNITY DOW V AG [1992] LRC Const. 623, the citizenship laws of Botswana prohibited or
denied a woman the capacity to grant citizenship to her non-Botswana husband which was not the
case for the men. Unity Dow challenged the citizenship laws as being discriminatory. The 1964
Constitution of Botswana had not provided for sex as one of the grounds of discrimination. However
the Supreme Court held that given that Botswana had been a signatory to several international
instruments including the African Charter [article 18 (3)] and the Convention of Elimination of All
forms of Discrimination Against Women(CEDAW); it could not be assumed that the prohibition of
discrimination on grounds of sex was not intended to be part of Botswana law. The Court
accordingly upheld Unity Dow’s argument.
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Similarly, in LONGWE V INTER CONTINENTAL HOTELS [1993]4LRC 221, the Plaintiff who
went to the bar of the Intercontinental Hotels in Lusaka was prohibited from entering the bar because
it was the policy of the hotel not to allow unaccompanied women into the bar. The Plaintiff filed a
claim before the courts contending that the policy of the hotel violated her right to freedom from
discrimination. The Supreme Court of Zambia held that given that the policy of the hotel only
targeted women, it was discriminatory on grounds of sex.

Clause 3 defines what is meant by discrimination as different treatment accorded to different persons
mainly because of their descriptions by sex, race, colour, religion, tribe, creed etc. The word that is
material here is ‘different treatment’ Accordingly, if a person is treated in the same way as the rest,
he may not claim that he has been discriminated against. In SHARON DIMANCHE & 2ORS V
THE MAKERERE UNIVERSITY Constitutional Cause No. 1 of 2003. , the petitioners petitioned
the Constitutional court contending that the policy of Makerere University, a public institution of
scheduling mandatory lectures, tests and examinations on Saturdays contravened their rights as
Seventh Day Adventist students to practice their faith as guaranteed under article 29 (1) (c) of the
Constitution. They further contended that the policy placed an unConstitutional burden on them by
virtue of their faith as well as undermining their right to education as guaranteed under article 30.
The Constitutional Court unanimously dismissed the petition and found that no violation of the
petitioner’s rights was committed by the University. The Court came to this conclusion because
among other reasons, the very essence of the right to practice one’s religious beliefs by implication
means to practice it without compulsion or coercion and discrimination. The petitioners were not
compelled to participate in academic programmes scheduled on the Sabbath and so to give up their
religious convictions or to be prevented to believe in the dictates of their faith to which they
subscribe. In fact to the contrary, the University policy applied to all students admitted to its
educational programmes irrespective of their religious convictions

Clause 4 embodies the concept of affirmative action and it allows parliament to make laws for the
implementation of policies and programmes that address imbalances in society. Affirmative action is
evidenced in such measures as adding 1.5 points to female students on joining the University,
economic empowerment through financial associations. The Local Governments Act Cap 243 as
amended (S 10) also requires two thirds of the composition of the District Councils to be women.

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 See also articles 32(1), 33(5), 78(1) (b) and (c), 180(2) (b) and (c).) Also refer to Section 10 of the
Local Governments Act Cap 243 as amended and The Persons with Disabilities Act, Act No. 20 of
2006.

RIGHT TO BAIL:
In the case of Charles Onyango Obbo & Anor v. A.G, 113 the applicants who had been charged with
the offence of publication of false news in the Chief Magistrate’s Court at Buganda Road, Kampala,
sought to challenge inter alia the excessive amounts of bail fee fixed by the Chief Magistrate in a
criminal trial against them. The bail fee as fixed by the Chief Magistrate was at UShs. 2,000,000/=
each and bound in sureties in a non-cash each bond of UShs. 5,000,000/= each, which respective
amounts were grossly excessive under all circumstances.

The High Court held that ‘is a fundamental principle of our criminal justice system that an accused
person is presumed innocent until proven guilty. This principle is enshrined in art. 28 (3) (a) of the
Constitution and is the basis on which the accused person enters into an agreement with the Court on
his recognizance that he will appear and attend his trial whenever summoned to do so. Additionally,
another person, generally known as the surety gives security to the same court, that the accused will
attend his trial on the hearing date. This agreement between the accused and sureties on the one hand
and the court on the other, is what is known as bail. It is meant to ensure that the accused attends his
trial without being detained in prison on remand while at the same time ensuring that investigation
into his case are completed without interference and that justice runs its course.’

The High Court further pointed out that bail is not a punishment but merely meant to secure the
Attendance of the accused at the trial, the effect not being to set the accused free but to release him
from custody.

Further more, that the considerations the trial court must consider before granting for bail are
contained in ss. 74 (1) & 75 of the MCA. If after considering them, it comes to the conclusion that it
is probable that the accused will appear to stand his trial, then court will determine the amount of bail
and may require sureties or even include special conditions like for example, requiring the accused to
report regularly to police or deposit his passport in court u/s.74 (1) MCA. The guide to the amount to
be fixed is one of reasonableness and that the fundamental basis for bail is the same in all-criminal
cases.
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Honorable Justice Solome Bossa went on to observe that the considerations laid down by the law for
Magistrates Courts and the High Court are different and the reasons appear to be that cases triable by
the High Court or offences not bailable by Magistrates Courts are of a more serious nature than those
bailable by Magistrate’s Courts.

That in the instant case, the “circumstances of the case’ which the learned Chief Magistrate ought to
have considered before exercising her discretion on the bond were that the applicants had been
charged with publishing false news c/s. 50 (1) of the Penal Code. It is not disputed that the applicants
had never committed any offence. The offence with which they were charged is a misdemeanor,
punishable u/s.24 of the PCA with a maximum penalty not exceeding 2 years. The
applicants also produced substantial sureties who were accepted by the Court and also had fixed
places of abode. Finally, the State did not object to the bail application.

While a court is entitled to take into account the accused’s ability to meet the bail conditions, it
should not impose such tough conditions that in the whole make bail appear as a punishment to the
accused.

In the final analysis, the learned Lady Justice held that Chief Magistrate did not properly exercise her
discretion for had she done so, she would not have imposed outrageously high amounts of UShs.
2,000,000/= cash bond for the applicants and UShs 5,000,000 bond not cash for the sureties. The
application was allowed and the amounts of bail imposed reduced from UShs 2,000,000/= to UShs
200,000/= cash for the applicants ad from UShs 5,000,000 not cash for the sureties to UShs 300,000.

In the case of Joseph Tumushabe v. A.G114 the Petitioner, a human rights activist sought to
challenge inter alia the procedure of the General Court Martial in trying suspects and its refusal to
respect the rights of prisoners in trials before the Court especially in regard to the grant of bail.

The brief background to the petition is that the Petitioner had learnt of the arrest of twenty-eight
people in the Democratic Republic of Congo by Congolese Authorities. The suspects had been
handed over to the Uganda People’s Defense Forces (UPDF). The Petitioner learnt that they were
still in custody but he could not ascertain where they were detained. Together with some relatives of
the detained persons, they files an application for a writ of habeas corpus in the High Court against
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the Army Commander and Attorney General. It was returned with an indication that the twenty five
persons had been remanded at Makindye Military Police Prisons on charges of Treason c/s. 25 of the
Penal Code Act except two who were under the detention of UPDF. The petitioner went on to argue
that since then, the detained persons have remained on remand and attempts to apply for bail have
been refused by the General Court-Martial. Further more, eighteen months have elapsed since their
arrest and no evidence has been adduced against them has been commenced against them nor is their
any trial in sight.

The Constitutional Court held inter alia that all provisions of the Constitution are binding on all
authorities in Uganda unless specifically exempted by the Constitution itself. The General court-
martial is not exempted from the provisions of Chapter Four of the Constitution that contains the Bill
of Rights.
Further more, the right to bail is a fundamental right guaranteed by the Constitution. Its basis is found
in art. 28 of the same Constitution, which contains the concept of presumption of innocence and right
of the accused to a fair and speedy trial before an independent and impartial court or tribunal,
established by law. These two principles are part of the right to a fair hearing, which is declared
inviolably u/ art. 44 of the Constitution. The idea is that a person who is presumed innocent and who
is entitled to a speedy trial should not be kept behind the bars for unnecessarily long before trial. It is
also the rationale of art. 23 of the Constitution which spells out the right to liberty.

Court further pointed out that accused people were entitled u/ art. 23 (6) (b) of the Constitution to be
released on bail after 120 days from the date they were remanded in custody by the General Court
Martial. Therefore, the act of the respondent in keeping them in detention beyond that period is
unconstitutional.

Even if a person is kept on remand by reason that a military court to try him/ her has been convened,
such a person is nevertheless entitled to be released on bail after the expiry of 120 days as
commanded by art.23 (6) (b) of the Constitution.

Art 23 (a), (b) and (e) of the Constitution applies to all civil courts as well as to all Court Martials.
Therefore, it neither accords unequal treatment to any persons charged in those courts nor is it
discriminatory within the meaning of art.21 (3) of the Constitution.

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And finally, Court held that the law that governs bail in Uganda is contained in art 23-(6) (a), (b) and
(e) of the Constitution. All other laws on bail in this country that are inconsistent with or contravene
this article are null and void to the extent of their inconsistency.

ILLEGAL DETENTION
In the case of Godfrey Gahawa for a writ of habeas corpus ad subjiciednum115 the issue before High
Court was whether a person can be detained on the strength of a clearly invalid detention order. It
was alleged that the order was invalid because the President had neither signed it nor had it been
shown that the President’s power had been delegated to the Minister alleged to have signed the Order
on behalf of the President. Furthermore, that the order did not bear a public seal thereby infringing on
ss. 1 and 12 of the Public Order and Security Act. Counsel for the respondent in reply argued inter
alia that the applicant had been taken to court and charged with criminal offences under the Penal
Code Act and his detention therefore lawful. The applicant had been denied bail. The High Court
held that the detention of the applicant on the alleged authority of the order which is clearly invalid is
illegal and were it not for the criminal charge which has recently been preferred against him, an order
for his release would have been issued.

That the applicant is at liberty to renew his bail application to the Court before which he was charged
with the criminal offence.
It must be trite law that where the restraint is in pursuance of a Court order which is itself
unconstitutional, then it is unjustified and unconstitutional. In the case of R V EXPARTE
NASREEN (1973) EA 153, the applicant was wed to her husband. She applied to the Khadi court for
an order for restitution for conjugal rights which was granted. Thereafter on his application, the
applicant was arrested and brought before the resident magistrate. The applicant hen applied for an
order for certiorari to quash the order on grounds that courts have no powers of enforcement to order
the return of a wife to her husband and therefore that the order infringed the applicant’s constitutional
right to personal liberty and freedom of movement and had the effect of holding her in servitude.
Court held that orders of court to secure an obligation in law should in themselves not violate the
right to personal liberty. However, there must be an existing legal obligation to be enforced. Yet in
this case there was no obligation on a wife to remain with her husband. Accordingly, the said order
unconstitutionally deprived the applicant of her liberty, it also restricted her right to freedom of
movement and held her in servitude. It was thus declared null and void and of no effect.

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Article 23(2) requires that a person who is detained is to be kept in a place authorized by law. The
phrase “a place authorized by law” implies 2 things namely first that the place must be gazzetted and
must be a place for detention of individuals and secondly that the place must be reasonably accessible
to the public. The ultimate purpose of clause 2 is to secure the security of the person or individual
and avoiding likely disappearance of individuals to unknown detention facilities. Clause 2 must be
read with 23(5) which requires the detained person to have his or her next of kin, lawyer and doctor
to have reasonable access to such detained person. The relevance of clauses 2 and 5 is to prevent
such facilities as safe houses and both clauses are new under the 1995 Constitution having not
previously existed in the 1967 Constitution or any other previous Constitution.

Article 23(3) requires that a person who has been arrested, restricted or detained be informed in a
language he/she understands the reasons for detention and of the right to a counsel of one’s choice.
This clause secures the traditional requirement for the police to caution an arrested person on the
right not to prejudice himself or herself and of his right to consult a lawyer to represent him.

In the case of CHRISTOPHER SAJJABI NSEREKO V AG COMPLAINT UHRC No. 112/99, it

was held by the Commissioners of the Uganda Human Rights Commission that by refusing to tell the
complainant the reasons for his arrest at the time of the arrest they violated the provisions of article
23 (3) of the Constitution. 2 million shillings was accordingly given to the complainant as general
damages for the violation of the right to personal liberty.

In R V FEENEY [1997]3 LRC 37, the individual had been stopped by a police officer for drunken
driving and was asked to accompany the Police officer to the Police station where a breadth layser
task was taken. However at no point did the police officer inform the individual of his right to
consult a lawyer. The Supreme Court of Canada held that there had been a violation of Feeney’s
Constitutional right given that he was not informed of his right to consult a lawyer.

Similarly, in THE QUEEN V THERENES [1986] LRC 455, the police entered the dwelling place
of the accused and proceeded to search the place where they recovered a blood stained shirt.
Thereafter they took finger prints and statements from the accused after cautioning him of his right to
silence. The Canadian Supreme Court held that a caution must be accompanied with notification to
the accused of his right to consult a lawyer and if need be the right to a toll-free phone call for
purposes of consulting a lawyer and that in the circumstances since Therenes was not informed of his
aforesaid rights, the act of the police was in violation of his Constitutional right and the entire

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evidence was thrown out on that ground. Moreover to be in detention, you need not be in a cell. It
was held in this case that the phrase ‘detention’ means a restraint of liberty of varying duration other
than a mere arrest. It was therefore defined to include situations where the movement of an individual
comes under the control of another person.

Article 23(4) is to the effect that a person arrested or detained (a) for the purpose of bringing him or
her before Court in execution of an order of a court or (b) upon reasonable suspicion of his/her
having committed or being about to commit a criminal offence under the laws of Uganda shall be
brought to Court as soon as possible not later than 48 hours from the time of his or her arrest.

Article 23(5) that where a person is detained (a) the next of kin shall at the request of that person be
informed immediately (b) the next of kin, lawyer and personal doctor of the person shall be allowed
reasonable access to that person.

Clause 6 secures a right to grant of bail. The right to bail is founded on the presumption of innocence
guaranteed under article 28(3) (a) and that therefore the individual should be allowed to regain his or
her liberty while being required to attend trial. Therefore the conditions of bail should be reasonable
and not punitive as to render that presumption illusory. This was the view of Lady Justice Bossa in
ONYANGO OBBO & ANOR V UG Crim. Misc. App. 1/97. The Magistrates court in that case had
awarded bail to the applicants at the figure of 2 million shillings for each of them. On appeal this
was considered too high and the judge reduced it to 200,000/= for each of the accused.

In KIGEMUZI V UG [Crim. Case 1442/98], the Court held that the right to grant of bail was a
Constitutional right secured under article 23(6) and the individual in certain circumstances is entitled
to automatic grant of bail where he/she has spent either 120 days or 360 days on remand.

In JOSEPH LUSSE V UG Crim. Misc. Appl. 73/97, the accused had been arrested and charged with
treason and subsequently spent 365 days on remand. Upon an application for grant of bail, Justice
Tabaro held that since the accused had spent more than 360 days in custody, he was entitled to
automatic grant of bail under the provisions of article 23 clause (6)(c).

Article 23(7) is the right to compensation for unlawful arrest or detention from the state or the
individual.

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Clause 8 embodies the principle of criminal procedure regarding sentencing ie that the period spent
in lawful custody shall be taken into account in imposing a sentence of imprisonment.

Clause 9 is the right to an order of habeas corpus which is inviolable in the sense that it cannot be
derogated from or suspended. This is provided for under article 44(d). The order of habeas corpus
has traditionally been a remedial procedure to secure personal liberty whereby the court orders
whoever is detaining an individual before the Court and give justification for the detention failure of
which the individuals should then be free to regain his or personal liberty. It is therefore ordered and
granted where it appears that the suspect is being detained on no lawful ground or beyond the
constitutionally allowed hours before being charged. In the case of GRACE STUART IBINGIRA
& ORS V UGANDA (1966) EA 306, the court was confronted with the validity and legality of the
Deportation Ordinance for being inconsistent with the 1962 Constitution. Section 19 (1) (j) provided
that no person shall be deprived of his liberty save as may be necessary in the execution of lawful
orders. The applicants had been held in custody pending a decision by the Minister concerned as to
whether a Deportation order under the Ordinance should be made against them. On application to the
High Court for a writ of habeas corpus on grounds that the Ordinance was inconsistent with the
Constitution, the High Court dismissed the application contending that the provisions of section 19
(1) (j) fell within the ambit of the Constitution. On appeal, the to the EACA, the appellants argued
that the trial judge had erred in looking at S 19 to the exclusion of S 28 and that Section 28
presupposed a lawful order which could not exist until S 28 was complied with. The learned state
attorney argued that S 28 covered judicial orders (a-d) and political or administrative orders were
covered under (e)-(f) and that the latter did not specify the manner in which liberty would be taken
away. He added that the word ‘lawful orders’ included a deportation order by the minister since it
was also made under statutory power and that the word ‘lawful’ merely meant in full compliance
with the procedure stipulated under the statute. Counsel for the appellants argued that clauses (a) and
(b) of S 28 covered orders made by courts and the rest i.e. c-g did not cover the administrative orders
which the minister purported to make under the Ordinance. Not falling within any provisions of S 28
(3), the minister’s order had validity. It was held Spry V-P that all that S 19 did was to provide that
lawful orders made under a statute restricting freedom of movement shall not constitute violations of
the right to personal liberty. In its opinion, the order had to pass the test in section 28 and had to be
provided for under it. S 19 it was held did not have the effect of authorizing legislation for the
restriction of the movements and residence of individuals. The appropriate section was thus S 28. The
Deportation Ordinance being void, no lawful order affecting Ugandan citizens could be made under

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it. S 19 was therefore inconsistent with the Constitution. Accordingly, the appeal was allowed and
the case remitted back to the High Court to issue the writ of habeas corpus as prayed.

In RE SHEIKH ABDUL SENTAMU Constitutional Reference No. 7 of 1998, an application for a

writ of habeas corpus was made regarding the applicant, Sentamu but on 2 occasions there was no
return on the writ. Subsequently, Sentamu the other accuseds were charged with treason before a
magistrate’s court in Kasese. When the issue of the writ of habeas corpus was brought to the
attention of the magistrate, he decided that this raised the question of enforcement of Constitutional
rights and referred the matter to the Constitutional Court under article 137(5). The Constitutional
Reference was dismissed by the Constitutional Court as incompetent given the fact that it was far the
enforcement of rights and freedoms and not the interpretation of the Constitution. However, Justice
Tabaro noted that the right to an order of habeas corpus is to secure the personal liberty of the
individual.
FREEDOM OF WORSHIP
In the case of Dimanche Sharon & Ors v. the Makerere University 116 the petitioners, Makerere
University Seventh Day Adventist Students brought this action against the University seeking inter
alia a declaration u/art. 137 of the Constitution that the respondent policy and regulations of
scheduling lectures, mandatory tests and examinations on the seventh day are inconsistent with and in
contravention of inter alia 30 of the Constitution in respect of petitioners who practice the Seventh
Day Adventist Christian faith.

The Constitutional Court laid down a number of limitations in regard to freedom of worship:

I. It is trite law that human rights and freedoms must be enjoyed within limits as provided u/art.
43 of the Constitution. Consequently, human rights are not absolute but enforceable within
reasonable limits;
II. When interpreting the Constitution, all provisions of the Constitution concerning an issue are
to be considered together, each one supporting the other so as to give effect to the purpose of
the Constitution.
III. Constitutional provisions are to be accorded a generous and purposive construction especially
the part protecting the fundamental human rights and freedoms. The interpretation should not
be legalistic so that fundamental and human rights are accorded maximum protection.
IV. Derogations from fundamental human rights should be given a narrow and strict construction.
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V. The standard of proof applied in cases of constitutional interpretation is on a balance of
Probabilities.
VI. It is incumbent upon the petitioners to show that they are entitled to the remedies sought on
the ground that their fundamental and human rights have been infringed by the respondent’s
policy. However, the respondent must show justification for a lawful derogation from such
fundamental rights within the ambit of article 43.
VII. Both the purpose and effect of the policy impugned must be examined to determine its
validity or invalidity.
VIII. Art. 20(7) gives religious equality but not immunity from observance of the law. Religious
freedom is therefore not an absolute fundamental human right.
IX. The petitioners were adequately notified at the time of admission of the Universities’
academic calendar. They should have turned down the offer of admission if they thought the
policy and regulations offensive.
X. There are many Universities and other tertiary Institutions in Uganda including Bugema
University for the petitioner’s faith. Joining Makerere University was not compulsory and
neither is University education.
XI. Having voluntarily joined respondent, the petitioners cannot be heard to demand from
respondent what is not affordable.
XII. The justification for the respondent’s policy is that the respondent is a public and secular
institution and as such has no duty to accommodate some beliefs based on religious
tenements. The respondent’s policy and regulations do not in any way ask the petitioners to
give up their religious convictions and become secular.
XIII. The respondent’s policy did not in any way force the petitioners to pursue a cause of action
they would not have taken. They were free to participate or not in the respondent’s
educational programs held on the Sabbath and neither did they prevent them or any member
of their faith from believing in the dictates of their faith to which they subscribe.
XIV. It is no where stated in the respondent’s policy and regulations that the petitioners should give
up their religious convictions and become secular.
XV. The purpose and effect of the respondent’s policy is to inter alia improve the quality of
education, enhance accessibility to education by more people and reduce the cost of
education. It is applicable to all students many of whom have similar religious beliefs and
convictions but accepted the programme.

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XVI. The University policy was not intentionally directed at the petitioners but was applicable to
all students and groups at various times. It was intended to benefit the majority student
population.
XVII. The policy and regulations of the respondent did not impose on the petitioners an
unconstitutional burden by virtue of their faith. They did not even undermine the petitioners
constitutionally guaranteed right to education u/art. 30;
XVIII. The respondent’s duty to accommodate the Seventh Day Adventist Students Minority is
conditional on the policy on the petitioner’s rights u/art. 20 of the Constitution and is not
prejudicial to other people’s rights in the University.

FREEDOM OF EXPRESSION:
The right to freedom of expression is not absolute.

In the case of Haruna Kanabi v. Uganda,117 the appellant, the registered proprietor of a News Paper
called ‘the Shariat’ was tried by the Chief Magistrate’s Court for publishing an article in his
newspaper in which he alleged that Rwanda was the 40th District of Uganda and President Museveni
of Uganda had visited it at the material time to solicit for votes. The appellant was convicted of the
offences of sedition c/ss. 41 (1) (a) and 41 (1) (c) and publication of false news c/s. 50 (1) both
offences u/ PCA. He was sentenced to inter alia 5 months imprisonment and a fine. Dissatisfied with
both the conviction and the sentence, the appellant proceeded to the High Court, thus this appeal. The
High Court held that

(II) It is apparent that by their character and timing, the contents of the Publication by
the appellant that alleged that Rwanda was the 40 th District of Uganda and that the
President had visited it at that material time for votes, That the contents were
seditious. The people of Uganda were being told that their money was being
squandered on Rwandans who were also likely to participate in the impending
elections in Uganda.

(II) A seditious intent may be inferred from the liberal itself without any extrinsic
Evidence of it. If words are seditious by their expression, a seditious Intention appears
without any extrinsic evidence.
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 (III) The contents of the publication were calculated to bring contempt or to Excite
disaffection against the person of the President or the Government of Uganda as by
law established. It is immaterial whether they did bring about such consequences or
not.

RIGHT TO EDUCATION:

In the case of Pius Niwagaba v. The Law Development Centre118 the applicant, who was a Law
graduate from one of the private Universities, Uganda Pentecostal University (UPU), applied to the
respondent, the Law Development Centre (hereinafter referred to as ‘LDC’ or the ‘respondent’) to
pursue a Post- Graduate Diploma in Legal Practice, successful completion of which would enable
him practice law. LDC is the only public vocational professional course in the country and it is
mandatory for all lawyers desirous of practicing law to enroll with the Institution and pass the course.
The respondent declined to enroll the applicant along with other graduates from the same University
and informed them that their University had not been approved and recognized by the Law Council
for purposes of admission of its students to the Post- Graduate Bar Course at LDC. They learnt that
the only Universities that had been approved were Makerere University and Uganda Christian
University, Mukono.

Counsel for the appellants argued inter alia that it was improper for the respondent to reject the
applicant’s application for admission on account of the lack of a blessing by the Law Council of the
applicant’s University. Under the law, no such reference to the Law Council for the applications of
admission to LDC is provided for and the Law Council did not have such legal power to recognize
Universities. On the contrary, the power to recognize Universities lay in the hands of the National
Council for Higher Education, which had duly recognized UPU. In rejecting the applicant, LDC had
failed to exercise its statutory powers. He further argued that the law recognized a degree in law from
Uganda and the Law Council reserved the powers to recognize or otherwise deny degrees attained

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from Universities outside Uganda with the exception of Dar es Salaam and Nairobi. Counsel for the
applicant also contended that the applicant was being denied equal protection of the law.

In response, counsel for the respondent argued inter alia that LDC did not have a statutory duty to
admit the applicant and that Mandamus could only be granted to enforce a statutory duty. That the
Committee for Legal Education of the Law Council had the power to prescribe professional courses
in law and to prescribe admission criteria to the Bar Course. As such, the Law Council had the
mandate to accredit any institution for the teaching of a law degree in Uganda. In the applicant’s
case, the Law Council had not accredited the UPU.

The High Court held inter alia that:

(I) There exist policy issues relating to the subject of professional legal education in Uganda. There
are also historical and other questions that inform that policy framework. However, this court sitting
in judicial review does not have to concern itself with policy or fairness or otherwise. Its duty in this
regard concerns questions of fairness, impropriety, unreasonableness or outright illegality.

(II) The course outline and regulations of the LL.B Degree of UPU is as good as any other in Uganda
or internationally.

(III) The right to education and academic freedom includes the right to establish academic
Institutions and to teach all subjects that are lawful. Any regulation of the effort should be exercised
broadly and with the purposive and enabling frame of mind that promotes the educational progress of
Uganda.

(IV) Under the Advocates Act, a person who is the holder of a degree in law granted by a University
in Uganda has attained the requirement in University legal education in Uganda. Once a University
duly licensed by the National Council for Higher Education awards a degree in law to a Ugandan
citizen in Uganda, then the individual qualifies to be admitted to the Bar Course. One then has to pass
the Bar Course to practice law.

(V) The denial of the applicant’s application for admission without a right of appeal robbed him of
any chance of seeking redress from the Council that did not hear him and yet purportedly barred him
from access to it and to LDC.

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(VI) While a University reserves its academic freedom in its admissions, a State Bar College which is
the only one in the country would have to accord fairness and opportunity for the citizens of Uganda
who require admission to the Bar Course and hold the requisite degree. LDC has a contractual duty
towards students seeking admission to its Bar.

In the case of Dimanche Sharon & Ors v. the Makerere University 119 the petitioners, Makerere
University Seventh Day Adventist Students brought this action against the University seeking inter
alia a declaration u/art. 137 of the Constitution that the respondent policy and regulations of
scheduling lectures, mandatory tests and examinations on the seventh day are inconsistent with and in
contravention of arts. Inter alia 30 of the Constitution in respect of petitioners who practice the
Seventh Day Adventist Christian faith.

The Constitutional Court held inter alia:

(I) It is trite law that human rights and freedoms must be enjoyed within limits as provided u/art.
43 of the Constitution. Consequently, human rights are not absolute but enforceable within
reasonable limits;
(II) The petitioners were
(III) adequately notified at the time of admission of the Universities’ academic calendar. They
should have turned down the offer of admission if they thought the policy and regulations
offensive.
(IV) There are many Universities and other tertiary Institutions in Uganda including Bugema
University for the petitioner’s faith. Joining Makerere University was not compulsory and
neither is University education;
(V) Having voluntarily joined respondent, the petitioners cannot be heard to demand from
respondent what is not affordable;
(VI) The justification for the respondent’s policy is that the respondent is a public and secular
institution and as such has no duty to accommodate some beliefs based on religious
tenements. The respondent’s policy and regulations do not in any way ask the petitioners to
give up their religious convictions and become secular;
(VII) The respondent’s policy did not in any way force the petitioners to pursue a cause of action
they would not have taken. They were free to participate or not in the respondent’s
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 educational programs held on the Sabbath and neither did they prevent them or any member
of their faith from believing in the dictates of their faith to which they subscribe;
(VIII) It is no where stated in the respondent’s policy and regulations that the petitioners should give
up their religious convictions and become secular.
(IX) The purpose and effect of the respondent’s policy is to inter alia improve the quality of
education, enhance accessibility to education by more people and reduce the cost of
education. It is applicable to all students many of whom have similar religious beliefs and
convictions but accepted the program;
(X) The University policy was not intentionally directed at the petitioners but was applicable to
all students and groups at various times. It was intended to benefit the majority student
population;
(XI) The policy and regulations of the respondent did not impose on the petitioners an
unconstitutional burden by virtue of their faith. They did not even undermine the petitioners
constitutionally guaranteed right to education u/art. 30;
(XII) The respondent’s duty to accommodate the Seventh Day Adventist Students Minority is
conditional on the policy on the petitioner’s rights u/art. 20 of the Constitution and is not
prejudicial to other people’s rights in the University.

RIGHT TO PROPERTY:

In the case of Pyarali Abdul Kasule Ismail v. Adrian Sibo 120 the background to the reference is that
Pyarali, an Asian who is the respondent (hereinafter referred to as the ‘plaintiff’) was up to 1972 the
registered owner of freehold land in Bulemezi (hereinafter referred to as the ‘suit property).

Upon the expulsion of Asians in 1972, the suit property was vested in the Departed Asian Property
Custodian Board (DAPCB) by a series of Decrees which were later consolidated into one decree
called the Assets of Departed Asians Decree, no.27/73. The decree gave the DAPCB power to
manage properties of departed Asians including the power to sell any property if deemed necessary.

In 1975, the DAPCB sold the suit property to Adrian, the applicant (hereinafter referred to as the
defendant) who in the same year became the registered owner of the property.

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In 1982, Parliament enacted the Expropriated Properties Act, 9/82 that nullified all dealings of any
kind in properties that had been expropriated under Decree no.27/73. Its main objective was to return
the expropriated properties to its former owners.

When the plaintiff returned to Uganda in 1991, the suit property was returned to him with a
Repossession certificate from the Minister of Finance u/ss. 4 &5 of the Expropriated Properties Act,
1982. He was reinstated as the registered owner thereof and the defendant promised compensation
u/s. 11 (4) of the Act. The defendant refused to surrender the property and wrote to the Minister
suggesting that given his involvement with the suit property for many years and the developments he
had put thereon, it would be more just if the government compensated the plaintiff. The matter
seemed to have remained at that, as far as the Minister of Finance was concerned.

In the meantime, the plaintiff sued the defendant for physical possession of the suit property and one
of the issues at the trial was whether the Expropriated Properties Act no.9/83 to the extent that it
nullifies the sale of the suit property to the defendant and accordingly deprived him of his proprietary
interest therein contravenes the Constitution of the Republic of Uganda and is thereby null and void
thus this reference.

The Constitutional Court held that:

(1) The Expropriated Properties Act 9/82 which had the effect of depriving some people of the
property they had legally bought from the DAPC did not violate the spirit of art. 13 of the 1967
Constitution because the Act provides for compensation;
(2) Compensation means what is given to the owner compelled to sell. It is the right to be put, so far
as money can do it, in the same position as if his land had not been taken from him. In other words,
the recipient gains the right to receive a money payment not less than the loss imposed on him in the
public interest, but on the other hand, not greater;
(3) Compensation should be assessed at the market value of the property at the time of judgment.
Fluctuations of currency where applicable must be taken into account in assessing what reasonable
compensation was due.

(4) The formula for compensation provided in s.11 (4) of Act 9/82 could not guarantee reasonable
compensation to an owner of property deprived of the property by the operation of the Act and was

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therefore to that extent in conflict with art. 13 of the 1967 Constitution and would have been null and
void if the 1967 Constitution was still in operation.

(4) The Expropriated Properties Act 1982 may have had a few provisions contrary to the provisions
of the 1967 Constitution especially s. 11 (4) and (6) of the Act. However, since that Constitution is no
more, the Act is good law. Offending sections of that Act like ss. 11 (4) and (6) must be construed so
as to conform to the provisions of art.26 of the 1995 Constitution.

In the case of AG v. Osotraco Ltd121

This is an appeal against the decision of the High Court that s. 14 (1) (b) of the Government
Proceedings Act, Cap. 77 was inconsistent with the Constitution and also the ancillary order of
eviction against the appellant and its agents with costs.

The brief background to the appeal is that the respondent claimed to be the registered proprietor of
the suit property. The suit property was however at the time of acquisition and thereafter occupied
by the Ministry of Information who refused to vacate despite the request to do so. The Ministry
claimed the property to be theirs thus the suit against them.

(I) Since the 1995 Constitution, the rights, powers and immunities of the State are not immutable
anymore. Article 20 enjoins everybody including Government agencies to protect and respect
individual fundamental human rights. The Constitution has primacy over all other laws and the
historic common law doctrines restricting the liability of the State should not be allowed to stand in
the way of constitutional protection of fundamental rights.

(II) Art. 26 protects the respondent’s right to own property. The respondent having obtained
judgment is clearly entitled to a meaningful form of redress u/art. 50 of the Constitution

In the case of Phillip Karugaba v. AG 122 the petition sought to challenge r. 15 of the Rules of the
Constitutional Court (Petition for Declarations U/art. 137 of the

121
Civil Appeal no. 32/02
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 Constitution), Directions, 1996 as being inconsistent with article 26 (2) of the Constitution for
depriving the estate of the deceased person of his right to property. .

(I) The Constitutional Court held that a judgment of court is property. The expression “ chose in
action” is used to describe all personal rights of property which can only be claimed or
enforced by action and not by taking physical possession;
(II) A right to file a Constitutional Petition is not property in terms of art. 26 (2). It is only a legal
action of a special nature. Such right is personal and cannot be assigned. It is not property
capable of being compulsory acquired and taken possession of by anybody;
(III) Where the estate of the deceased petitioner seeks redress, the action can be instituted in a
court of competent jurisdiction and if a question of constitutional interpretation arises, the
same can be referred to this court U/art. 137 (5) of the Constitution;
(IV) The right of proceeding in a court of law by a deceased person to recover pecuniary damages
for tortuous wrongs inflicted on her can be pursued by her estate for the benefit of her
dependants in a competent court under the Law Reform (Miscellaneous. Provisions) Act,
Cap. 74. This right of action does not have to abate even when the main action commenced
by the deceased abates upon her death;
(V) A chose in action, which is property, is a right of action in a court of law to recover a sum of
money or pecuniary damages for tortuous wrongs or non-performance of a contract. This
right of action need not be translated into a judgment to be property;
(VI) Rule 15 of the Rules of the Constitutional Court (Petition for Declarations U/art. 137 of the
Constitution) Directions 1996 is mandatory. A petition abates upon the death of a sole
petitioner;
(VII) In order for the petitioner to bring himself within the ambit of article 26, he bears the burden
to prove that he is a person who has an interest over the property either individually or in
association with the deceased. He has also to show that he was deprived of his property
compulsorily U/r. 15 and that there was no provision made for prompt payment of fair and
adequate compensation.
In the case of Salvatori & anor v. AG123 the petitioner and (another since deceased and therefore no
longer a party to the petition) were charged with practicing witchcraft c/s. 3 (3) of the Witchcraft
Act. He sought to challenge its constitutionality as inter alia depriving him of his right to property.

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The Constitutional Court held that inter alia particularly, the Exclusion Order is void for offending
against art. 26 (2) of the Constitution in that it denies the convicted person access to his property. It
also offends against art. 24 by subjecting the convicted person to a form of torture which is cruel,
inhuman and degrading.

THE RIGHT TO A FAIR HEARING:

The right to a fair hearing has a number of ingredients. Provided for under article 28 of the
constitution, the right comprises of a fair, speedy and public hearing before an independent and
impartial court or tribunal established by law. The article goes on to stipulate the presumption of
innocence. An accused person also has a right to be informed in a language that he understands of the
nature of the offence, be afforded adequate time and facilities for the preparation of his/ her defense,
be permitted to appear before the court in person or at that person’s own expense by a lawyer of his/
her choice, legal representation at the expense of the State in capital cases, the assistance of an
interpreter and facilities to examine witnesses and obtain the attendance of other witnesses before the
court….
Thus, in the case of Salvatori & Nor v. AG124 the petitioner and (another since deceased and
therefore no longer a party to the petition) were charged with practicing witchcraft c/s. 3 (3) of the
Witchcraft Act, Cap. 108, pleaded guilty and was accordingly sentenced to twenty-two months
imprisonment and banished from his home for 10 years after serving the prison sentence. His appeal
to the Chief Magistrate was dismissed. The Petitioner thus brought this Petition challenging his
conviction, sentence and Exclusion Order which was made pursuant to s. 7 of the Act as being
inconsistent and in contravention of arts.21 (1) & (2), 24, 25, 28 (1) & 2, 29 (1), (b) & (c) & (2) and
29 (2) of the Constitution. He particularly attacked the Exclusion Order as depriving him of his
properties and denying him the right to reside and settle in any part of Uganda.

The respondent denied that the Witchcraft Act was inconsistent with any provision of the
Constitution or that the Exclusion Order was in contravention of arts. 26 (2) and 29 (2) of the
Constitution and contended that the Exclusion Order is actually consistent with arts.28 (12) of the
Constitution as part of a penalty prescribed by law.

The Constitutional Court held that:

(I) The right to life is only deprived upon a sentence of death imposed after a fair trial by a court
of competent jurisdiction in respect of criminal offence. The Constitution therefore does not
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 permit sentence of an Exclusion Order to threaten the right to life or to lead to the loss of the
right to life through deprivation of shelter, food and essential sustenance;
The Witchcraft Act having been promulgated in 1957 with words dependent for their meaning on the
social environment in which it was passed but which environment has since changed has outlived its
usefulness and violates art.28 of the Constitution.

The case of Suzan Kigula & 416 v. AG125 one of the issues before court was whether the death
penalty process was a form of torture, cruel, inhuman or degrading punishment. The petitioners, all of
whom were at the time of filing the petition on death row, in their petition contended inter alia that
the imposition of the death sentence on them was unconstitutional for being inconsistent with arts. 24
and 44 of the Constitution. The petitioners went on to contend in the first alternative that the various
provisions of the laws of Uganda, which provide for mandatory death sentence, are inconsistent with
arts. inter alia 24 of the Constitution. That though the Constitution guarantees protection of the
rights and freedoms such as, equal treatment before the law, the right to a fair hearing etc, the
provisions which provide for mandatory death sentence contravene those Constitutional provisions.
That a convict who is sentenced under such a mandatory provision is denied the right to appeal
against sentence only. They also argued in the second alternative that a long delay between the
pronouncement of the death sentence and the carrying out of the sentence allows for a death
syndrome to set in. That carrying out of the death sentence after such a long delay constitutes a cruel,
inhuman and degrading treatment prohibited by arts.24 and 44 of the Constitution.
In the final alternative, the petitioners contended that section 99 (1) of the Trial on Indictments Act
(Cap. 23 of the Laws of Uganda) which provides for hanging as the legal mode of carrying out a
death sentence was cruel, inhuman and degrading as it contravenes arts.24 and 44 of the Constitution.
The Constitutional Court held inter alia that :

(1) It is a well known rule of interpretation that to take away a right given by common law or statute,
the legislature should do that in clear terms devoid of any ambiguity. The right to life is not
included in art. 44 on the list of the non-derogable rights. Therefore, arts. 24 (dealing with
freedom from torture, cruel, inhuman or degrading treatment or punishment) and 44 could not
have been intended to apply to the death penalty permitted in art. 22 (1). The imposition of the
death penalty therefore does not constitute cruel, inhuman or degrading punishment and the
various provisions of the laws of Uganda that prescribe the death sentence are not inconsistent
with or in contravention of arts. 24 and 44 or any provision of the Constitution;
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(2) A fair hearing must basically mean hearing both sides. Refusing or denying a convict facing a
death sentence to be heard in mitigation when those facing lesser sentences are allowed to be
heard in mitigation is clearly unjustifiable discrimination and unfair. It is neither consistent with
the principles of equality before and under the law guaranteed in art. 21, nor with the right to a
fair hearing guaranteed in arts. 22 (1), 28 and entrenched in art. 44 (c);
(3) The procedure in s. 98 of the Trial in Indictments Act that denies the court opportunity to inform
itself on any mitigating factors regarding the sentence of death deprives the court the chance to
exercise its discretion to determine the appropriateness of the sentence. It compels the Court to
impose the sentence of death merely because the law directs it to do so. This is an intrusion by the
legislature into the realm of the Judiciary. For the legislature to define the offence and prescribe
the only sentence which the court must impose on conviction without affording the court
opportunity to exercise its discretion to determine the appropriateness of the sentence is clearly a
violation of the principle of separation of powers;
(4) The generous and purposive interpretation of the provision would require exercise of discretion
by the appellant court on whether or not to confirm the death sentence. This would be done upon
consideration of the circumstances of the offence and of the offender since the circumstances of
murders or aggravated robbery and of their offenders are not exactly the same. Those differences
determine the appropriateness of the sentence to be imposed in each case. But again, the
procedure in s. 98 of the Trial on Indictments Act that does not permit the convict under a
mandatory sentence of death provision to be heard in mitigation before he or she is sentenced or
permits court to inform itself on the appropriateness of the sentence to pass in the case of
mandatory death sentence contravenes art. 22 (1) of the Constitution;
(5) S. 132(1) (b) of the Trial on Indictments Act, Cap. 23 which makes provision for an appeal to the
Court of appeal against the sentence alone imposed by the High Court, other than one fixed by
law denies a convict who is also sentenced under the provisions where the sentence is fixed by
law to appeal against sentence only. Yet art. 21 (1) of the Constitution guarantees equal
protection before and under the law. That there is no justifiable reason for denying a convict who
is sentenced to a sentence fixed by law to appeal against sentence only. For example, it forbids
convicts of the death sentence for murder or aggravated robbery to appeal against sentence but
allows others whose sentences are not fixed by law. This is repugnant to the principle of equality
before the law and fair trial;
(6) Execution by hanging may be cruel but arts. 24 and 44(a) were not intended to apply to the death
sentence permitted in art. 22 (1) so that implementing or carrying out of the death penalty by
hanging cannot be held to be cruel, inhuman or degrading. Arts. 24 and 44 (a) do not apply to it

143
 and punishment by its nature must inflict some pain and unpleasantness, physically or mentally to
achieve its objective. Therefore, s. 99 (1) of the Trial on Indictments Act was constitutional as it
operationalises art. 22 (1) and therefore not inconsistent with arts. 24 and 44 (a);
(7) In regard to the issue of the lapse of time before the death sentence is carried out, the condemned
prisoners did not lose all their constitutional rights and freedoms except those rights and freedoms
that have inevitably been removed from them by law, either expressly or by necessary
implication. The condemned prisoners are entitled to the protection of arts. 24 and 44 (a) of the
Constitution in respect of their treatment while they are in confinement before execution. They
are not to be subjected to cruel, inhuman or degrading treatment. The conditions and the fear that
the convicts on death row live in portray a very grim picture of the conditions in the condemned
section of Luzira Prison. They are demeaning physical conditions. Such conditions coupled with
the treatment meted out to the condemned prisoners during their confinement are not acceptable
by Ugandan standards and also by the civilized international communities. Inordinate delays in
such conditions indeed constitute cruel, inhuman or degrading treatment prohibited by arts. 24
and 44 (a) of the Constitution of Uganda;
(8) To determine inordinate delay, the period when the condemned prisoners has spent on the death
row should start from the time the convict’s sentence has been confirmed by the highest appellant
court for such process is mandatory. During that time, the appellant has hope of his conviction
and sentence being reversed. It is the time taken between the confirmation of his or her sentence
and execution, where the condemned prisoners has virtually lost hopes of surviving execution,
that should determine whether or not there has been an inordinate delay;
(9) The Constitution sets up the Advisory Committee set up u/art. 121 of the Constitution to advise
the President in the exercise of his discretion on prerogative of mercy. The article is
operationalised by s. 102 of the Trial on Indictments Act and s. 34 of the Prisons Act that provide
procedures to be followed to seek prerogative of mercy. Neither the Constitution, nor those
statutory provisions have set up a time frame within which the prerogative of mercy process
should be completed. The prerogative of mercy is an executive process that comes after the
judicial process is concluded. It is important that the procedure seeking pardon or commutation of
the sentence should guarantee transparency and safeguard against delay;

The spirit of the constitution demands that whatever is to be done under it affecting the Fundamental
Rights and Freedoms must be done without unreasonable delay and s.34 (2) of the Interpretation Act,
Cap 3 provides that where no time is prescribed or allowed within which anything shall be done, that
thing shall be done, without unreasonable delay. A delay beyond three years after the condemned

144
prisoner’s sentence has been confirmed by the highest appellant court would tend towards
unreasonable delay. Therefore, the condemned prisoners who have been on death row for five years
and above after the appellate courts had confirmed their sentences had waited longer than
constitutionally permissible

FREEDOM FROM TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT:

Article 24 of the Constitution lays down provisions for respect for human dignity and protection from
inhuman treatment. Aspects of this right have been ably discussed by the different courts and
tribunals. Interestingly, the right has aspects of other rights and cannot be discussed independent of
these rights. The case of Suzan Kigula & 416 v. AG 126 one of the issues before court was whether the
death penalty process was a form of torture, cruel, inhuman or degrading punishment. The
petitioners, all of whom were at the time of filing the petition on death row, in their petition
contended inter alia that the imposition of the death sentence on them was unconstitutional for being
inconsistent with arts.24 and 44 of the Constitution. The petitioners went on to contend in the first
alternative that the various provisions of the laws of Uganda, which provide for mandatory death
sentence are inconsistent with arts. inter alia 24 of the Constitution. They also argued in the second
alternative that a long delay between the pronouncement of the death sentence and the carrying out of
the sentence allows for a death syndrome to set in. That carrying out of the death sentence after such
a long delay constitutes a cruel, inhuman and degrading treatment prohibited by arts.24 and 44 of the
Constitution.

In the final alternative, the petitioners contended that section 99 (1) of the Trial on Indictments Act
(Cap. 23 of the Laws of Uganda) which provides for hanging as the legal mode of carrying out a
death sentence was cruel, inhuman and degrading as it contravenes arts.24 and 44 of the Constitution.
The Constitutional Court held inter alia that it is a well known rule of interpretation that to take away
a right given by common law or statute, the legislature should do that in clear terms devoid of any
ambiguity. The right to life is not included in art.44 on the list of the non-derogable rights. Therefore,
articles 24 (dealing with freedom from torture, cruel, inhuman or degrading treatment or punishment)
and 44 could not have been intended to apply to the death penalty permitted in art. 22 The imposition
of the death penalty therefore does not constitute cruel, inhuman or degrading punishment and the

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145
various provisions of the laws of Uganda that prescribe the death sentence are not inconsistent with
or in contravention of arts. 24 and 44 or any provision of the Constitution;

The Court went on to further hold execution by hanging, may be cruel but arts. 24 and 44(a) were not
intended to apply to the death sentence permitted in art.22 (1) so that implementing or carrying out of
the death penalty by hanging cannot be held to be cruel, inhuman or degrading. Arts. 24 and 44 (a) do
not apply to it and punishment by its nature must inflict some pain and unpleasantness, physically or
mentally to achieve its objective. Therefore, s. 99 (1) of the Trial on Indictments Act was
constitutional as it operationalises art.22 (1) and therefore not inconsistent with arts. 24 and 44 (a);

In regard to the issue of the lapse of time before the death sentence is carried out, the Constitutional
Court held that the condemned prisoners did not lose all their constitutional rights and freedoms
except those rights and freedoms that have inevitably been removed from them by law, either
expressly or by necessary implication. The condemned prisoners are entitled to the protection of
articles 24 and 44 (a) of the Constitution in respect of their treatment while they are in confinement
before execution. They are not to be subjected to cruel, inhuman or degrading treatment. The
conditions and the fear that the convicts on death row live in portray a very grim picture of the
conditions in the condemned section of Luzira Prison. They are demeaning physical conditions. Such
conditions coupled with the treatment meted out to the condemned prisoners during their
confinement are not acceptable by Ugandan standards and also by the civilized international
communities. Inordinate delays in such conditions indeed constitute cruel, inhuman or degrading
treatment prohibited by articles 24 and 44 (a) of the Constitution of Uganda.

To determine inordinate delay, the Constitutional Court held that the period the condemned prisoners
has spent on the death row should start from the time the convict’s sentence has been confirmed by
the highest appellant court for such process is mandatory. During that time, the appellant has hope of
his conviction and sentence being reversed. It is the time taken between the confirmation of his or her
sentence and execution, where the condemned prisoners has virtually lost hopes of surviving
execution, that should determine whether or not there has been an inordinate delay.

The Court also observed that Constitution sets up the Advisory Committee set up u/art. 121 of the
Constitution to advise the President in the exercise of his discretion on prerogative of mercy. The
article is operationalised by s. 102 of the Trial on Indictments Act and s. 34 of the Prisons Act that
provide procedures to be followed to seek prerogative of mercy. Neither the Constitution, nor those

146
statutory provisions have set up a time frame within which the prerogative of mercy process should
be completed. The prerogative of mercy is an executive process that comes after the judicial process
is concluded. It is important that the procedure seeking pardon or commutation of the sentence
should guarantee transparency and safeguard against delay. The spirit of the constitution demands
that whatever is to be done under it affecting the Fundamental Rights and Freedoms must be done
without unreasonable delay and s.34 (2) of the Interpretation Act, Cap 3 provides that where no time
is prescribed or allowed within which anything shall be done, that thing shall be done, without
unreasonable delay. A delay beyond three years after the condemned prisoner’s sentence has been
confirmed by the highest appellant court would tend towards unreasonable delay. Therefore, the
condemned prisoners who have been on death row for five years and above after the appellate courts
had confirmed their sentences had waited longer than constitutionally permissible.

EQUALITY BEFORE THE LAW:

The right to equality before the law also has different aspects. Provided for under article 21 of the
Constitution,

The case of Suzan Kigula & 416 v. AG 127 one of the issues before court was whether the death
penalty process was a form of torture, cruel, inhuman or degrading punishment. The petitioners, all of
whom were at the time of filing the petition on death row, in their petition contended inter alia that
the imposition of the death sentence on them was unconstitutional for being inconsistent with arts. 24
and 44 of the Constitution. The petitioners went on to contend in the first alternative that the various
provisions of the laws of Uganda, which provide for mandatory death sentence are inconsistent with
arts. inter alia 24 of the Constitution. That though the Constitution guarantees protection of the
rights and freedoms such as, equal treatment before the law, the right to a fair hearing etc, the
provisions which provide for mandatory death sentence contravene those Constitutional provisions.
That a convict who is sentenced under such a mandatory provision is denied the right to appeal
against sentence only. They also argued in the second alternative that a long delay between the
pronouncement of the death sentence and the carrying out of the sentence allows for a death
syndrome to set in. That carrying out of the death sentence after such a long delay constitutes a cruel,
inhuman and degrading treatment prohibited by arts.24 and 44 of the Constitution.

127
Constitutional Petition no. 6/03

147
In the final alternative, the petitioners contended that section 99 (1) of the Trial on Indictments Act
(Cap. 23 of the Laws of Uganda) which provides for hanging as the legal mode of carrying out a
death sentence was cruel, inhuman and degrading as it contravenes arts.24 and 44 of the Constitution.

The Constitutional Court held inter alia that :

(10) It is a well known rule of interpretation that to take away a right given by common law or
statute, the legislature should do that in clear terms devoid of any ambiguity. The right to life is
not included in art. 44 on the list of the non-derogable rights. Therefore, arts. 24 (dealing with
freedom from torture, cruel, inhuman or degrading treatment or punishment) and 44 could not
have been intended to apply to the death penalty permitted in art. 22 (1). The imposition of the
death penalty therefore does not constitute cruel, inhuman or degrading punishment and the
various provisions of the laws of Uganda that prescribe the death sentence are not inconsistent
with or in contravention of arts. 24 and 44 or any provision of the Constitution;
(11) A fair hearing must basically mean hearing both sides. Refusing or denying a convict facing a
death sentence to be heard in mitigation when those facing lesser sentences are allowed to be
heard in mitigation is clearly unjustifiable discrimination and unfair. It is neither consistent with
the principles of equality before and under the law guaranteed in art. 21, nor with the right to a
fair hearing guaranteed in arts. 22 (1), 28 and entrenched in art. 44 (c);
(12) The procedure in s. 98 of the Trial in Indictments Act that denies the court opportunity to
inform itself on any mitigating factors regarding the sentence of death deprives the court the
chance to exercise its discretion to determine the appropriateness of the sentence. It compels the
Court to impose the sentence of death merely because the law directs it to do so. This is an
intrusion by the legislature into the realm of the Judiciary. For the legislature to define the offence
and prescribe the only sentence which the court must impose on conviction without affording the
court opportunity to exercise its discretion to determine the appropriateness of the sentence is
clearly a violation of the principle of separation of powers;
(13) The generous and purposive interpretation of the provision would require exercise of
discretion by the appellant court on whether or not to confirm the death sentence. This would be
done upon consideration of the circumstances of the offence and of the offender since the
circumstances of murders or aggravated robbery and of their offenders are not exactly the same.
Those differences determine the appropriateness of the sentence to be imposed in each case. But
again, the procedure in s. 98 of the Trial on Indictments Act that does not permit the convict
under a mandatory sentence of death provision to be heard in mitigation before he or she is

148
 sentenced or permits court to inform itself on the appropriateness of the sentence to pass in the
case of mandatory death sentence contravenes art. 22 (1) of the Constitution;
(14) S. 132(1) (b) of the Trial on Indictments Act, Cap. 23 which makes provision for an appeal to
the Court of appeal against the sentence alone imposed by the High Court, other than one fixed
by law denies a convict who is also sentenced under the provisions where the sentence is fixed by
law to appeal against sentence only. Yet art. 21 (1) of the Constitution guarantees equal
protection before and under the law. That there is no justifiable reason for denying a convict who
is sentenced to a sentence fixed by law to appeal against sentence only. For example, it forbids
convicts of the death sentence for murder or aggravated robbery to appeal against sentence but
allows others whose sentences are not fixed by law. This is repugnant to the principle of equality
before the law and fair trial;
(15) Execution by hanging, may be cruel but arts. 24 and 44(a) were not intended to apply to the
death sentence permitted in article 22 (1) so that implementing or carrying out of the death
penalty by hanging cannot be held to be cruel, inhuman or degrading. Articles 24 and 44 (a) do
not apply to it and punishment by its nature must inflict some pain and unpleasantness, physically
or mentally to achieve its objective. Therefore, s. 99 (1) of the Trial on Indictments Act was
constitutional as it operationalises article 22 (1) and therefore not inconsistent with articles 24 and
44 (a);
(16) In regard to the issue of the lapse of time before the death sentence is carried out, the
condemned prisoners did not lose all their constitutional rights and freedoms except those rights
and freedoms that have inevitably been removed from them by law, either expressly or by
necessary implication. The condemned prisoners are entitled to the protection of arts. 24 and 44
(a) of the Constitution in respect of their treatment while they are in confinement before
execution. They are not to be subjected to cruel, inhuman or degrading treatment. The conditions
and the fear that the convicts on death row live in portray a very grim picture of the conditions in
the condemned section of Luzira Prison. They are demeaning physical conditions. Such
conditions coupled with the treatment meted out to the condemned prisoners during their
confinement are not acceptable by Ugandan standards and also by the civilized international
communities. Inordinate delays in such conditions indeed constitute cruel, inhuman or degrading
treatment prohibited by articles 24 and 44 (a) of the Constitution of Uganda;
(17) To determine inordinate delay, the period when the condemned prisoners has spent on the
death row should start from the time the convict’s sentence has been confirmed by the highest
appellant court for such process is mandatory. During that time, the appellant has hope of his
conviction and sentence being reversed. It is the time taken between the confirmation of his or her

149
 sentence and execution, where the condemned prisoners has virtually lost hopes of surviving
execution, that should determine whether or not there has been an inordinate delay;
(18) The Constitution sets up the Advisory Committee set up u/art. 121 of the Constitution to
advise the President in the exercise of his discretion on prerogative of mercy. The article is
operationalised by s. 102 of the Trial on Indictments Act and s. 34 of the Prisons Act that provide
procedures to be followed to seek prerogative of mercy. Neither the Constitution, nor those
statutory provisions have set up a time frame within which the prerogative of mercy process
should be completed. The prerogative of mercy is an executive process that comes after the
judicial process is concluded. It is important that the procedure seeking pardon or commutation of
the sentence should guarantee transparency and safeguard against delay;

The spirit of the constitution demands that whatever is to be done under it affecting the Fundamental
Rights and Freedoms must be done without unreasonable delay and s.34 (2) of the Interpretation Act,
Cap 3 provides that where no time is prescribed or allowed within which anything shall be done, that
thing shall be done, without unreasonable delay. A delay beyond three years after the condemned
prisoner’s sentence has been confirmed by the highest appellant court would tend towards
unreasonable delay. Therefore, the condemned prisoners who have been on death row for five years
and above after the appellate courts had confirmed their sentences had waited longer than
constitutionally permissible

THE RIGHT TO LIFE

The right to life is one of the most respected rights in the Constitution. The debate on what
constitutes these right ranges on with many scholars arguing that it extends to all aspects that
constitute an adequate and reasonable life. Thus, in the case of Salvatori Abuki & Anor v. AG128 the
Constitutional Court of Uganda held the deprivation of shelter, food and essential sustenance as the
consequence of Exclusion Order under the Witchcraft Act (now repealed) as threatening the right to
life or to leading to the loss of the right to life and therefore not permissible under the Constitution.

Article 22 of the Constitution does not however makes the right to life absolute but does give
instances where it is lawful to intentionally deprive a person of this right. These instances are close
cut and are only limited to cases of execution of a sentence passed in a fair trial by a court of
competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction

128
Constitutional Petition no. 2/97

150
and sentence have been confirmed by the highest appellant court 129. There are however instances
under the Laws of Uganda where an excuse can be afforded for the deprivation of life. Some of these
instances appear to permit the intentional deprivation of the right to life. One qualifying factor
however is that the killing is deemed unlawful. Thus, under S. 192 of the Penal Code Act, 130 if the
killing that is unlawful is done under circumstances which but for the section would constitute
murder, such killing done in the heat of passion caused by sudden provocation as defined in S. 193
and before there is time for his/ her passion to cool, the offence committed is reduced to
manslaughter. Other defenses that might excuse the unlawful deprivation of the right to life include
mistake of fact,131 insanity,132 intoxication,133 compulsion134 and the defense of person/property.135 The
operation of these defenses must however be limited to the meaning and scope 136 attached to them
under the different provisions of the Penal Code Act. The death penalty is the way the execution of a
court sentence geared towards depriving the individual of the right to life is carried out. Court in the
137
case of Suzan Kigula & Ors v. A.G held the death penalty as stipulated under art. 22 of the
Constitution as a recognized exception to the right to life and therefore Constitutional.

The same case shows that death penalty although has its advocates has of recent been judiciously
challenged. Thus, in the case of the question of the constitutionality of the death penalty was
addressed. In this case, the petitioners, all of whom were on death row sought to challenge the death
sentence as unconstitutional. The Constitutional Court held inter alia that in regard to the issue of the
lapse of time before the death sentence is carried out, the condemned prisoners did not lose all their
constitutional rights and freedoms except those rights and freedoms that have inevitably been
removed from them by law, either expressly or by necessary implication. The spirit of the
constitution demands that whatever is to be done under it affecting the Fundamental Rights and
Freedoms must be done without unreasonable delay and s.34 (2) of the Interpretation Act, Cap 3
provides that where no time is prescribed or allowed within which anything shall be done, that thing
shall be done, without unreasonable delay. A delay beyond three years after the condemned
prisoner’s sentence has been confirmed by the highest appellant court would tend towards
129
See Salvatori Abuki & Anor v. Uganda Constitutional Petition no. 2/97. Actually, the unlawful intentional
deprivation of the right to life with malice aforethought is termed as murder and is punishable under S. 189 of
the Penal Code Act, Cap. 120, Laws of Uganda.
130
Laws of Uganda, Cap. 120
131
Ibidem, S. 9
132
Ibidem, S. 11
133
Ibidem, S. 12
134
Ibidem, S. 14 & 17
135
Ibidem, S. 15
136
For example, under S. 12 (1) of the Penal Code Act, intoxication is only a defence to a criminal charge
within the exceptions afforded by the section.
137
Constitutional Petition no. 6/03

151
unreasonable delay. Therefore, the condemned prisoners who have been on death row for five years
and above after the appellate courts had confirmed their sentences had waited longer than
constitutionally permissible.

138
Another case attacking the death penalty was filed by the Uganda Law Society , the application
sought to challenge the constitutionality of the National Resistance Statute no.3/92 in so far as it
provides for the passing of death sentences at all or without an appeal to the Supreme Court. The
applicants are thereby seeking for an Order stopping the operation of s. 92-(1) (a) of the Statute.
The Constitutional Court held that:

Death is final and puts an end to everything. However, one has to balance it with higher objectives
the punishment is intended to achieve. The necessity for the death sentence in a field operation
cannot be underestimated for in field operations, tough decisions and actions are sine quo non.
Therefore, on a balance of convenience, it is not proper to suspend the operation of s.92 of the NRA
Statute.

Civilian political matters cannot be mixed up with security military matters and the court cannot
apply the same yardstick for both.

It is perhaps of importance to also point out that the right to self-determination and the right to die
with dignity has been advocated for. These rights usually come into play in cases of terminally ailing
persons who prefer to have their lives taken away.

The right of the unborn child is protected under article 22 (2). Such right is however qualified by the
authority of the law.

NB:-
It is interesting to note that Courts have been trying to expound of the limits of the Deprivation of the
right to life and its deprivation.
In the case of Salvatori Abuki V Attorney General, the denial of a livelihood of the petitioner was
deemed to be a denial of the right to life.
Deprivation of the right to life was again in a similar contest challenged before the Constitutional
Court in 2002 in two petitions. This was in the UGANDA LAW SOCIETY V AG Constitutional
138
The Uganda Law Society v. AG, Constitutional Application no. 7/03

152
Petition No. 2/2002 and JACKSON KARUGABA V AG Constitutional Petition No. 8/2002. These
two petitions were filed in the wake of the March 2002 military executions in Kotido and the
contention was that the trial before a Field Court Martial and the subsequent executions were in
violation of the rights guaranteed under the Constitution in articles 22 and 28. Prior to the hearing of
the substantive application, an application was filed seeking stay of any further application of Section
29 (1) (a) of the NRA Statute No. 3 of 1992 on the military law and further executions in the military
pending determination of the petitions. The crux of the application was that death penalty convictions
of a Field Court Martial were under the military law without appeal and therefore were not
‘confirmed by the highest appellate court’ , the Supreme Court as required by article 22 (1). The
Constitutional Court however unanimously held that the Field Court Martial was a ‘court of
judicature’ and thus consequently it was a court of competent jurisdiction in the spirit of article 22
(1). It however disagreed that a Field Court Martial should be subject to procedures of appeal as
envisaged under article 22 (1). That Field Court Martial is a special court in light of the fact that it is
even accorded certain dispensations under the Constitution. Court therefore concluded that a Field
Court Martial court is a special court which should not be bogged down by appeal procedures. The
Court referred to the recognition of the special nature of a Field Court Martial under article 121 (6)
and 137 (5) of the Constitution and observed that ‘ a Field Court Martial is established for the trial of
both service men and women who commit offences in a field of operation where it is impracticable
for the offender to be tried by any other military court. The Court is established before the soldiers
depart for the operations they are involved in. It is disbanded when the operation is completed. Its
primary objective is to administer instant justice and instill discipline among the men and women at
the front line…The Constitution itself regards a Field Court Martial as a special court which is only
established to maintain law and order and military discipline in a field of operations where to employ
the normal court structures would create problems for the Field Commanders.’ Accordingly, the
Court was satisfied that Parliament never intended that article 22 (1) was to apply to the Field Court
Martial.

This case has been seen by many as a loss of a great opportunity to bring to c account the operations
of the FCM. A close reading of article 22 (1) makes it clear that it is not enough that the sentence has
been passed by a court of competent jurisdiction (which the Court found the FCM to be), whichever
that competent court is, its sentence must be confirmed by the highest appellate court. The article
does not make any exemptions. If the legislators had wished to exclude the FCM then they had ample
language at hand to use. It was palpably wrong therefore for the Learned Justices to impute an
intention on part of Parliament which it did not express itself. Moreover, the framers of the

153
Constitution were aware that the FCM existed. Had they intended to exempt it then they would have
been the best draftsmen to do so.

Equally, the Constitutional Court is enjoined to interprete the Constitution in a liberal and generous
manner as earlier seen. It must not limit unduly a citizen’s rights unless they are expressly limited by
the Constitution itself. In essence, the Court purported to take away a citizen’s rights by implication
which is odd to the well know principles of constitutional interpretation.

It is also argued that aright of appeal is a well known facet of the right to a fair trial. If we take it thus
far then there is possibility to argue that by their decision, the Court were indirectly curtailing a non-
derogable right under article 44 (c).

In FORUM OF CONSCIENCE V SIERRA LEONE ACHPR Commn. No. 223/98

24 soldiers were tried and sentenced to death by a Court Martial for their alleged roles in the coup
d’etat that overthrew the elected government of President Tijan Kabah. The Court Martial tried and
convicted the soldiers and allowed no right of appeal against the conviction or sentence to a higher
tribunal. It was noted by the African Commission on Human and People’s Rights that since the
purpose of military courts is to determine offences of a purely military nature committed by military
personnel there is a stronger case that, they must at all times comply with fair trial standards. The
denial of a right of appeal, it was noted, was a blatant disregard of the right to a fair trial under article
7 (1) of the African Charter on Human and People’s Rights. The position was exacerbated by the fact
that the violation was
now irreversible.

The right to life is always perceived in the sense of non-deprivation of the physical existence of the
individual. It is therefore a right that requires the state to desist from acts that take away life. Over
the decades, the question has arisen whether the right to life can include positive elements and
therefore to extend the right to livelihood in the form of availing socio-economic factors that ensure
sustenance and survival of the body. India has been the flag bearer in this trend. In TELLIS & ORS
V BOMBAY MUNICIPAL COUNCIL (1987) LRC (Const.) 351, the petitioners argued that if
they were evicted from their slum and pavement dwellings, that would violate their right to life under
article 21 of the Indian Constitution. They sought to argue that the right to life included the right to
livelihood. The Supreme court accepted their argument and added that ‘if the sweep of the right to
life conferred by article 21 is wide and far reaching. It does not mean merely that life can not be

154
extinguished or taken away for example by the imposition and execution of the death penalty, except
according to law. That is but one facet of the right to life. An equally important facet of that right is
the right to livelihood. If the right to livelihood is not treated as part of the Constitutional right to life,
the easiest way of depriving a person of his right to life would be to deprive him of his means of
livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective
content and meaningfulness but it would make life impossible to live’.

The passage above in TELLIS was cited with approval in the Ugandan case of SALVATORI
ABUKI V AG. In that case, the petitioners were banished from their homes for 10 years after serving
a prison sentence for contravention of the Witchcraft Act. The Constitutional court struck down the
Act as being unconstitutional and inconsistent with the Constitution which guaranteed citizens from
cruel, inhuman or degrading treatment, the right not to be compulsorily deprived of property and the
right to life. The court took judicial notice of the fact that most people in Uganda live in rural areas
and survive on the land. Court considered that the banishment provisions would have the effect of
excluding the banished person from shelter, food by denying him access to land and that such a
person is rendered a destitute upon leaving prison.

Similarly the destruction of brothels in Dhaka was held to infringe the rights to life of the prostitutes
by way of depriving them of their source of livelihood in BSEHR V GOVERNMENT OF
BANGLADESH (2000) and the right to life has been extended to mean and include the right to a
clean and healthy environment in INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V
UNION OF INDIA (1996) 2 LRC 226 so has the right to employment (DDHEU V DELHI
ADMINISTRATION (1993) 4 LRC 182), education(KHRISHNAN V STATE OF ANDREH
PRADESH (1993) 4 LRC 234), peace (OPERATION DISMANTLE INC. V THE QUEEN
(1986) LRC (Const) 421), shelter or housing (LAWSON V HOUSING NEW ZEALAND (1997) 4
LRC 369).

But it appears that the Courts even though willing to expand this right have at the same time
exercised great caution. In BAT LTD V TEAN LTD Civil Application No. 27 of 2003 (Unreported),
the issue before court among others was whether unregulated smoking in public places amounted to
an infringement of the rights of the non-smoking members of the public. BAT challenged the validity
of TEAN’s action in Application No. 70 of 2002 being brought under article 22 (1) of the
Constitution on grounds that it failed to specifically plead with particulars the intention to deprive
life. BAT submitted accordingly that there was no cause of action. In upholding this argument, the

155
Principal Judge noted that that failure to make full disclosure of the dangers or risks of smoking
cigarettes to the consumers of the cigarettes was too remote to taking away of the life of such
consumers. He noted that failure to disclose such dangers may in fact be attributable to such other
reasons as not to reduce business of selling cigarettes. Otherwise, to attribute intention to kill to such
failure would call for strict if not impossible proof. In the event that it failed to specifically plead the
intention of taking away of life, the application disclosed no cause of action and would be struck out.

This decision has however been seen as bringing across a very rigid interpretation of the right to life
and choosing to restrict it only to the physical termination of life whereas the Courts in other
jurisdictions are now embracing the sustenance and quality of life as being part of the larger right of
fully enjoying the right to life in a meaningful sense. Moreover, the Principal Judge ought to have
remembered the purposive approach of interpreting the Constitution. In this sense, he would have
given it effect by widely reading the right to life to include its quality after all he was protected by
judicial precedent in Salvatori Abuki’s case. Many commentators see this as a wasted chance to make
a decision that would have an usual but yet very rewarding result.

THE RIGHT TO HABEAS CORPUS:

Habeas corpus is a constitutional right that secures the right to be tried according to the law or to be
released. The writ of habeas corpus is used to question the legality of restraint and thereby facilitates
the release of persons in unlawful custody.139

Provisions relating to the right to habeas corpus are entrenched in articles 23 (9) and 44 (d) of the
Constitution. This right is non-derogable,140 inviolable and cannot be suspended.141 A writ for habeas
corpus is granted in two stages. Once a decree nisi has been granted, it has to be returned by the party
to whom it is directed.

Whereas the application for the writ may be made from the moment of arrest, where there have been
valid proceedings subsequent to the arrest, which were offered in justification of detention, a prisoner
will not get redress by habeas corpus. Court has jurisdiction to deal with a person before it no matter
how improper the procedure that brought that person before it. This was held in the case of Re: A

139
A reference from the High Court of Uganda and Re: Sheik Abdul K. Sentamu & Anor, Constitutional Petition
no.7/98
140
See article 44 (d)
141
See article 23 (9)

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reference from the High Court of Uganda and Re: Sheik Abdul K. Sentamu & Anor, 142 where an
application for a writ of habeas corpus subjuciendum against the Inspector General of Police for the
applicant’s production before court was lodged. Counsel for the applicants averred that the applicants
had been arrested in various places by the police between May 2 1998 and May 25, 1998, detained in
different places and had not been charged and produced before court c/art.23 (4) (b) of the
Constitution. The High Court granted them an order nisi on June 8, 1998 returnable on June 12, 1998.
The writ was extended and returned several times but the applicants were not produced in court. The
applicants were later charged with the offence of treason.

Counsel for the applicants submitted that since the applicants were charged after the order nisi was
made, there had been a violation of art. 23 (5) (b) of the Constitution. He therefore requested for a
reference on the matter to the Constitutional Court, which was granted u/art.137 (5) (b) of the
Constitution.

THE RIGHT TO BAIL:

The law that governs bail in Uganda is contained in art 23-(6) (a), (b) and (c) of the Constitution (as
amended by Act 11/2005). All other laws on bail in this country that are inconsistent with or
contravene this article are null and void to the extent of their inconsistency. This was pointed out in
the case of Joseph Tumushabe v AG.143 The same Constitutional case recognizes the right to bail as
a fundamental right guaranteed by the Constitution. The Constitutional Court in the same case went
on to find its basis in art. 28 of the same Constitution, which contains the concept of presumption of
innocence and the right of the accused to a fair and speedy trial before an independent and impartial
court or tribunal, established by law. ‘These two principles are part of the right to a fair hearing,
which is declared inviolably u/ art. 44 of the Constitution. The idea is that a person who is presumed
innocent and who is entitled to a speedy trial should not be kept behind the bars for unnecessarily
long before trial. It is also the rationale of art. 23 of the Constitution which spells out the right to
liberty.’

Under article 23 (6) (a-c), provisions are made for the release of persons arrested in respect of
criminal offences to:

(a) To apply to the court to be released on bail on such conditions as the court considers reasonable;

142
Constitutional Petition no. 7/98
143
Constitutional Petition 6/04

157
(b) If the offence is triable by the High Court and a subordinate court, such person has the right to be
released on bail on such conditions as the court considers reasonable if he/ she has been on
remand in custody in respect of the offence before trial for 60 days;
The position prior to the 1995 Constitution was a bit different and all that mattered was that the
person must have been brought to court within a reasonable time. It therefore appears that the High
Court then had the jurisdiction to grant bail at any time so long as it considered that a reasonable time
had elapsed. Thus, in the case of Uganda v. Muhamudu Sebi144 the applicant on trial for aggravated
robbery sought to inter alia apply for bail. The High Court held inter alia that the it had power at any
stage of the proceedings to grant bail. This power, it held, is not restricted. ‘However, in considering
granting bail, it has to consider certain guiding principles. In murder cases, bail should be granted
only in exceptional circumstances. The applicant is presently facing a charge of aggravated robbery,
which carries a mandatory sentence of death on conviction. He is also going to face a murder trial. In
these circumstances, the temptation to escape in order to escape the supreme penalty is great. The
fact that he is a soldier in the army is no guarantee.’ Today, in cases involving applications for the
writ of habeas corpus, the High Court has jurisdiction to grant bail to the accused person up to when
the writ of habeas corpus is returned with a charge145.

(c) If the offence is triable by the High Court alone and the suspect has been remanded in custody for
120 days before the case is committed to the High Court, it is mandatory for the court to release such
person on such conditions as the court considers reasonable. It is however important to note that
Article 23 (6) (c) cannot apply to a General court-martial where there are no committal proceedings.
It applies to the Magistrates Court where the offence charged is triable ONLY by the High Court and
the accused person has not been committed for trial in the High Court for 360 days. This was the
observed in the case of Joseph Tumushabe v. AG146

The importance of the observance of the provisions relating to bail cannot be over- emphasized.
Thus, in the case of Joseph Tumushabe v AG147 the Petitioner sought to challenge inter alia the
procedure of the General Court Martial in trying suspects and its refusal to respect the rights of
prisoners in trials before the Court especially the right to bail.

144
Criminal Session 227/75
145
Joseph Tumushabe v. AG, Constitutional Petition no. 6/04
146
Ibidem
147
Ibidem

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The brief background to the petition is that the Petitioner had learnt of the arrest of twenty-eight
people in the Democratic Republic of Congo by Congolese Authorities. The suspects had been
handed over to the Uganda People’s Defense Forces (UPDF). The Petitioner learnt that they were
still in custody but he could not ascertain where they were detained. Together with some relatives of
the detained persons, they filed an application for a writ of habeas corpus in the High Court against
the Army Commander and Attorney General. It was returned with an indication that the twenty five
persons had been remanded at Makindye Military Police Prisons on charges of Treason c/s. 25 of the
Penal Code Act except two who were under the detention of UPDF. The petitioner went on to argue
that since then, the detained persons have remained on remand and attempts to apply for bail have
been refused by the General court-martial and that eighteen months have elapsed since their arrest
and no evidence has been adduced against them has been commenced against them nor is their any
trial in sight.

The Constitutional Court held that the accused people were entitled u/ art. 23 (6) (b) of the
Constitution to be released on bail after 120 days from the date they were remanded in custody by the
General Court Martial. Therefore, the act of the respondent in keeping them in detention beyond that
period is unconstitutional. The Constitutional Court further observed that even if a person is kept on
remand by reason that a military court to try him/ her has been convened, such a person is
nevertheless entitled to be released on bail after the expiry of 120 days as commanded by art. 23(6)
(b) of the Constitution.

Finally, it is also of great significance to point out that Art. 23 (a), (b) and (c) of the Constitution
apply to all civil courts as well as to all Court Martials.148

FAIR TRIAL [Article 28]

Article 28 guarantees the right to a fair trial. That the individual shall be entitled to a fair speedy and
public hearing before an independent and impartial Court. Therefore there should be no
unreasonable delay in the trial. The trial must be in public view so as to ensure fairness although
there are circumstances in which the public may be excluded from the Court for reasons of morality,
public order and national security. The tribunal must be independent and impartial in the sense that it
is not subject to the authority or control of another person or organ of government and that there is no
appearance of a likelihood of bias.

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Ibidem

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What amounts to a speedy trial however is not the subject of any hard and fast rules. Nevertheless, it
appears that socio-economic conditions count much when it comes to its determination. Yet it must
be emphasized that article 28 must be seen as a whole such that it is not enough for a trial to be
speedy if it is not fair. The Kotido Field Court Martial executions brought this to the limelight. The
accuseds were tried in less than 3 hours sentenced to death and executed shortly thereafter. Many
questioned the argument of government that the trial was speedy as required by the Constitution. The
question was whether it had been fair as well given the fact that there was no ample time for thorough
investigations to be done.

The requirement of a ‘public hearing’ is intended to ensure that the public can oversee the
dispensation of justice after all it is dispensed in their name under article 126. This however does not
prejudice the right of courts to hold any trial in camera where matters at stake involve national
security, the protection of morals or the protection of the litigants. An example is in the
TINYEFUZA case of 1997 where the right to information in the hands of the State and the testimony
before a parliamentary committee and its use in judicial proceedings before a court was subjected to a
hearing in camera. Similarly, trials in the Family and Children Court are usually heard in camera
where there are concerns that the child may be adversely affected by a public hearing.

An independent court or tribunal implies that the officers of the court or tribunal should not be the
subject of any direction of external influence of another person or organ. It also means that the judges
or tribunal members must not be likely to be biased. Accordingly, Judges as a rule of courtesy stand
down when they feel that there is a possible source of conflict that may arise. An example was in the
trial of the former Chilean dictator Augustino Pinochet in 1999 wherein a Lord of the House of Lords
in the United Kingdom was pressed to withdraw from the trial because his wife worked for Amnesty
International an organization that was at the forefront of having the dictator tried for his massive
crimes against humanity. In Uganda Court of Appeal Justice, Stephen Kavuma has always been the
victim of this. He has always been requested to stand down in cases involving contested political
issues against the government. This is because he was a former minister in the NRM government and
many allege that his appointment to the Bench was a political appointment.

In PROFESSOR ISAAC NEWTON OJOK V UGANDA Crim. Appeal No. 33 of 1991, where the
learned trial judge had close connections with the government in power of which the accused was
charged with attempting to overthrow by arms, the trial was held not to have been impartial.

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Article 28(3) secures several guarantees during the trial of an individual for a criminal offence
including:

a) The right to a presumption of innocence. This remains a fundamental principle of criminal

law in the common law system. In effect, the individual must not be treated as if he/she was
guilty. This principle has already been affirmed with respect to the right to grant of bail.

There is no doubt that the presumption of innocence is the very core of the right to a fair hearing in
criminal proceedings. The point has been succinctly put by Dickson CJ in Her Majesty the Queen V
Oakes (1986) S.C.R 103 where he stated that ‘the presumption of innocence protects the
fundamental liberty and human dignity of any and every person accused by the state of criminal
conduct. An individual charged with a criminal offence faces grave social and personal
consequences, including potential loss of physical liberty, subjection to social stigma and ostracism
from the community, as well as other social, psychological and economic harms. In light of the
gravity of these consequences, the presumption of innocence is crucial. It ensures that until the state
proves an accused guilt beyond all reasonable doubt, he or she is innocent. This is essential in a
society committed to fairness and social justice. The presumption of innocence confirms our faith in
human kind, it reflects our belief that individuals are decent and law abiding members of the
community until proved otherwise’. In that case, Oakes, the accused was charged with possession
of narcotic contrary to the Narcotic control Act. He was subsequently convicted of possession of a
narcotic. Section 8 of the Act provided that where the court finds an individual in the possession of a
narcotic, then it must presume that it was in possession for the purpose of trafficking. The accused to
disprove that he was in possession for the purpose of trafficking. Section 8 violated the right to
presumption of innocence.

This fundamental right and belief is underscored by Article 28 (3) (a) of the 1995 Constitution which
provides that every person who is charged with a criminal offence shall be presumed to be innocent
until proved guilty or until that person has pleaded guilty. Unfortunately the same article has a claw-
back clause in article 28 (4) (a) to the effect that nothing done under the authority of any law shall be
held to be inconsistent with paragraph (a) above to the extent that the law in question impose upon
any person charged with a criminal offence, the burden of proving particular facts. This presumption
has always been recognized by case law. The 1962, 1966 and 1967 Constitutions had similar
safeguards as well. In the old case of WOOLMINGTON V DPP (1935) AC 642, it was stated that
‘no matter what the charge or where the trial, the principle that the prosecution must prove the guilt

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of the prisoner is part of the common law of England and no attempt to whittle it down can be
entertained’. This case has always been cited with approval in criminal trials.
Uganda witnessed a number of laws where the onus was reversed and placed on the accused.

By way of example the following statutes can be mentioned:

a) Under the Fire Arms Act, 1970, Section 39 (1) was to the effect that ‘in the prosecution under
the provisions of this Act the burden of proof that any accused person is entitled to purchase,
acquire or have in possession any fire arm or ammunition by virtue of any certificate or
permit or by virtue of any exemption shall lie on the accused person”
b) The Penal Code Act was also amended in 1984 introducing section 28 on terrorism.
Subsection (4) of that section provided that ‘without prejudice to the right to adduce evidence
in rebuttal, any person who imports, sells, distributes, manufacturers or is in possession of any
fire arm or ammunition without a valid licence or reasonable excuse shall be deemed to be
engaged in acts of terrorism’. Thus if found in possession of a fire arm or ammunition, the
onus was on the accused to prove that the possession was lawful and that he was not engaged
in any acts of terrorism.

However, article 28 (4) (a) raises Constitutional issues. Article 44 (c) of the 1995 Constitution states
the right to a fair hearing to be a non-derogable right ‘notwithstanding anything in this Constitution’.
If the right to be presumed innocent until the contrary is proven is to be taken to be a fundamental
aspect of the right to a fair trial then no doubt article 28 (4) (a) stands to be challenged to the extent
that it places a reverse onus on the accused. And to the extent that it impairs a fundamental non-
derogable right then not withstanding any provision (i.e. article 28 (4) (a)), the right to be presumed
innocent as part of a right to a fair hearing must prevail.

a) The right to be informed in the language that the individual understands of the offence for
which he/she is being tried.
This right is often interrelated with that in paragraph (d) of being afforded an interpreter where the
individual does not understand the language used at the trial.
In the case of ANDREA V R [1970] EA 26, the accused was a Mozambican who only understood
Portuguese and his native Mozambican language. This trial was conducted in English on Appeal the
EACA held the there had been a violation of the accused’s right to an interpreter during his trial.

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c) The right to legal representation and facilities for the preparation of the defence in respect of
offences whose penalty is one of death sentence or life imprisonment, the right to legal
representation is at the expense of the state.

In STATE V VERMAAS (1995), the South African Constitutional Court expressed that 2 years after
the 1993 Constitution it had not been demonstrated that the state had put in place facilities to
securities to secure the right to legal representation at the expense of the state. On the other hand, the
right to be afforded adequate time and facilities for the preparation of defence includes the right to be
granted an adjournment for the purposes of security the services of a lawyer or the attendance of
one’s advocate.

In MUYIMBA & ORS V UGANDA (1969) EA 433, the hearing of the trial was in Masaka and the
accused’s lawyer who was in Kampala was informed in the morning of the day of the trial and thus
could not make it to Court in time. The Magistrate refused to adjourn the case when Muyimba asked
for an adjournment. This was held to be a violation of the accused’s right to legal representation.

The right to adequate time and facilities for preparation of one’s legal defence has been considered to
include the right to seek for an adjournment to retain counsel where the previous one has withdrawn
from handling the case. In KATARYEBA ZACKARY Vs UGANDA (1996) HCB 36, the lawyer
of the accused’s abandoned the case and they applied for an adjournment to obtain the services of
another lawyer which was refused by the Magistrate. The High Court Judge held that the refusal to
grant adjournment amounted to a violation of the right to legal representation as in article 28(39(c).

Refer to the Advocates (Amendment) Act 2002 which requires advocates to avail free legal
assistance as part of their practice.

d) The right to equality of arms in the sense of obtaining attendance and examination of witnesses.

e) Clause 8 secures the right of an individual against trial in absencia therefore the individual must
be tried in his or her presence unless he/she has become a menace. This provision was tested in
the case of ESAU NAMANDA & ORS V UG [1991] Crim App. The 5 accuseds were charged
with intermediary with the property of the deceased person. On the first day of the trial, only one
of the accused was produced in Court and when the charge was read to him, he pleaded guilty.
This was taken by Court as the plea of guilt for all the 5 including the 4 absent. The 4 appealed

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 against their conviction. The High Court held that in convicting the 4 appellants on the plea of
government when they had not been produced before Court, this was a violation of the right of
the individual to be tried in his presence.

Similarly, in KATARYEBA’s case, where the trial magistrate had purported t enter plea of guilty in
respect of the one accused who had been arraigned before him and the 3 others charged jointly but
who had not been brought to court that day, it was held by the High Court on appeal that there had
been a failure on the part of the trial magistrate to appraise himself with the provisions of article 28
95) which entitles the accused to be present at his trial save for the cases where his conduct renders
his presence impracticable.

Clause 6 provides for the right of the individual to the copy of the proceedings of the trial.

Clause 7 states that one shall not be tried for an offence which did not constitute an offence at such
time. This provision is meant to ensure that acts lawfully done at the time when they were lawful
must not be retrospectively criminalized.

Clause 8 requires that one should be punished in the way which such offence would have been
punished under a double jeopardy ie punished twice for the same offence.

Clause 10 states that no person shall be tried for a criminal offence if the person shows that he/she
has been pardoned. In criminal law proceedings therefore, this is usually a valid plea to charges if it
can be established with positive evidence.

Clause 11 secures the right for self incrimination by providing for non -compellable witnesses. The
accused has a right to keep silent during the course of trial. This is the reason why in criminal trials,
the accused and his or her spouse are competent but not compellable witnesses. (See Rex V Amkeyo)

Clause 12 states that for a person to be punished for any criminal offence, such an offence must be
clearly defined by law and the penalty prescribed. This provision was exemplified in the
SALVATORI ABUKI V AG. In that case, the argument by the Petitioner was that the Witchcraft
Act under which witchcraft was sought to be criminalized and under which the accused was sought to
be banished from the community did not define in clear terms the type of conduct that was prescribed
as being criminal. The Learned Judges accepted the argument and declared the Act unconstitutional.

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Else where in Zimbabwe in MARK CHAVUNDUKA & ANOR V MINISTER FOR HOME
AFFAIRS Case No. 36/2000, the law on false news has been held to be so vague as to be clear on
which particular conduct or words constitute the offence including such words as fear, alarm, false
etc.

NB
A fair trial in the constitution is embodied under Articles 28, 42 and 44 of the 1995 Constitution of
Uganda.

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