CONSTITUTIONAL LAW NOTES

LLB I / DPL I 2022/2023

SEMESTER TWO
1.Title of Course Unit: Constitutional Law

2. Contact Hours: 64 hrs

3. Objectives of the Unit:

Constitutional Law intends to impart skills, knowledge, attitudes and values

in three major areas. These include:

i)
Constitutional, social and political theory, values and principles with
specific reference to Uganda;
ii)
The role of constitutional theory, principles, doctrines, and law or rules in
political, social, cultural and economic organization, as well as in
nationhood and development in Uganda.
ii)
Knowledge of the rules of law – especially constitutional and related
judicial rules including the Bill of Rights;

4. Expected Learning outcome(s)

i) That at the end of the semester students appreciate Constitutional,

social and political theory, values and principles with specific
reference to Uganda;
ii) that the students acknowledge and appreciate the significance of
the rules of law – especially constitutional rules;
iii) That the students appreciate the role of constitutional theory,
principles, doctrines, and law or rules in political, social, cultural
and economic organization, as well as in nationhood and
development in Uganda.
iv) That student be in a position to critically analyse and interrogate
the role of constitutional and related administrative law regarding
the machinery of government.
5. Course unit content

The following are some of the topics that constitute the content of the
Constitutional law

• General principles of the constitution

• Nature of the constitution
• Sources of the constitution
• Classification of the constitutions
• The distinction between dictatorship and democratic government
• Rule of law
• Separation of powers doctrine
• The doctrine of checks and balances
• The executive arm of government
• The concept of ministerial responsibility
• The judiciary and the exercise of judicial powers
• Interpretation of the constitution
• Citizenship
• Human rights

GENERAL PRINCIPLES OF CONSTITUTIONAL LAW

What is the constitution?
According to Osborne’s concise law dictionary 9 th edition,
• A constitution is a document embodying those laws, instructions or customs which
combine to create a system of government by which the community is related
• It is also a document including the laws, instructions or customs and aspirations of
the people of the nation.
• According to wade and Phillip’s (authors) a constitution is a document having special
legal sanctity (power) which sets out the frame work and principle functions of the
organs of the state.
• According to G.W. Kanyeihamba (Constitutional law and Government 1975 Edition),
a constitution of a state consists of basic and fundamental laws which the
inhabitants of a state consider to be essential for their governance and wellbeing.
• It lays down political and other state institutions and distributes power among them
and puts limitations on the exercise of those powers.

In many countries, the constitution is regarded as the supreme law of the land. In
other wards it has higher status with other laws of a state. The constitution usually
does not contain detailed rules on how different institutions normally name certain
things which should be done in a country e.g. the constitution will provide for
regular free and fair elections but the rules governing nations are found in particular
statutes or particular laws for example the Parliamentary Elections Act and the rules.

The constitution also contains the system of owning land (land tenure system) but
the detailed provisions are found in various legislations.

Basically there is no rule regarding the definition of constitutional law but it is

agreed that the term constitutional law means the rules that regulate the principal
organs of government and their relationship with each other. It also covers the rules
that govern the relationship between the organs of government.

It also covers the judicial decisions that have been made over time relating to issues
or matters that arise from non-compliance. The study also covers the rules that
govern the relationship between individuals and the state. In case of Uganda or any
other country constitutional law covers how the constitution has evolved, how it
works and why it changes from time to time.
NATURE OF CONSTITUTIONS
All constitutions of the world explain the nature and they include the following:

• The idea of supremacy of the constitution:

Most constitutions provide that the constitution is the supreme law of the land
implying that all authority is derived from the constitution and is exercised
according to its provisions and that any beyond it is regarded as un
constitutional. It is also supreme on the sense that parliament derives authority
from it and can make laws which are consistent with the provisions of the
constitution

However, there are few countries which don’t regard their constitutions to be
supreme and can pass the law which is capable of changing the constitutional
principles.

• The idea of the purpose:

A Constitution is made to last for undefined period of time i.e it’s not restricted
in its time of operation unless it’s started that it’s an interim constitution and can
be changed after time.

 The idea of certainty.

The provision of the constitution should be well known and accessible such
that in time of conflict should be referred back to and the way to achieve
this is to have written constitution and 99% of the countries of the world
have written constitutions. It’s therefore usually contained in the document
series of documents known as the constitution of a particular country. Even
unwritten constitutions have a collection of written documents.

• Flexibility.

The constitution also the world over will provide a system of amendment. It
must be accommodative i.e new idea and situations come up so a constitution
 must have a mechanism though which it can change to new developments/
social, political and economic. It may be by a simple majority in parliament,
special motions, or special majorities and other by referendum and others
may incorporate all these it may also have various ways of mending new
articles in the constitutions

SOURCES OF THE CONSTITUTION

In countries with written constitutions there is no problem as to the source of the constitution
is. A written constitution will actually be the source itself (found in a document). However, in
situations where there is un written constitution there can be various sources of the
constitution or constitution law :
(i) Legislation:
The constitution law in search cases is ascertained by the various laws passed by
the sovereign parliament. These would be ordinary statutes but they give a
foundation e.g In Britain There are various sources of statues or acts which are
sources of constitution:

Magna Carta (1215)

The Magna carta is regarded as the first constitution statute in Britian. I t was
the first attempt to limit absolute power which hitherto enjoyed by the king.
Some of the chapters the Magna Carta include the following:
• It set the rights of the various classes of people in the community.
• It established trial by the jury i.e the jury of his or her peers.
• It is limited to the power of government on matters of succession.
• It provided that no man shall be punished in any way except through a
trial to the law.
 Bills of Rights of 1688
• It laid out some general principles aimed at administration of the
country:
• All Laws can only be made with the consent of parliament. (Exercise of
legislative power without parliamentary consent was illegal).
• Any form of taxation without the power of parliament was illegal.
• It provided for the right of the people to petition the king for redress to
grievances.
• It guaranteed freedom of speech and debate in parliament.
• It provided for free elections to members of parliament.
• It stated that no excessive bail should be demanded
• Nobody should be deprived of his property unless it’s as a consequence
doing of punishment day given in the legal process.
• It also provided that subjects that are protestant could have guns for
themselves for general protection.

The Act of Settlement 1700

This statute resolved the issue of royal success. Whoever, wasn’t part of
the Church of England could not become King of Britain. Even in cases
where there are written constitutions, there are some statues, which
may be so important as far as the constitution is concerned thus are part
of the study of Constitution Law.

(ii)Judicial Precedents/Case Law:

Procedures are decisions of the courts of authority. It’s an important source of constitutional
law because it discusses principals of the constitution. It is important where there is no written
law and very helpful in cases where the constitution is written but in general terms (on behalf)
e.g. The American constitution uses the words: “Due Process” but in Uganda it’s more detailed.
(iii) Constitutional Conventions:
These are accepted practices over a period of time. They may not be in writing but everybody
respects them. In cases of unwritten constitutions, there must be conventions which are
important because they normally fill in gaps.

(iv) Authoritative Writings:

Writings or of leading authorities are the constitution. In a unconstitution it isn’t in possible to
ascertain the rules, guidance sought from of authority they put together practices that are
acceptable. Where there is a problem interpreting a particular clause in the constitution
guidance sought of the of leading commentators of the constitution. However, the writings
don’t have legally binding force.

THE ESSENTIALS OF A GOOD CONSTITUTION

It is possible that a particular type of constitution may prove useful for a particular
country, but it may not prove useful for any other country.
It depends on the social and economic set of the country. Every state has the right to
decide and decide its constitution.
According to the definition of constitution, good constitution should have the following
essentials: –

 Clarity or definiteness: – Every sentence or clause written in the constitution

should be in simple language. The meaning of each clause should be express
clearly without leaving any scope for confusion.
 Brevity: – The formation should not be too long. It should only include important
things. But this brevity should not make a difference in the constitution except for
a few issues.
 Comprehensiveness: – The constitution should apply throughout the country. If
it is a federation, it should demarcate the structure and power of the central and
provincial governments.
 Flexibility: – The constitution should not be too rigid to interrupt the amendment
process when needed.
 Declaration of rights: – People should have fundamental rights in a good
constitution. Such declarations have been made in the constitution of countries
like India, Russia, China, America and Japan.
  Independence of judiciary: – The independence of the judiciary is another
quality of a good constitution. The judiciary must act independently and act as a
protector of the fundamental rights of the people without any fear.
 Directive Principles of State Policy: – Directive principles of state policy have
to be mentioned in a good constitution as it helps in the creation of a welfare

DIFFERENT TYPES OF CONSTITUTION

A constitution is defined as a body of rules established to regulate the system of government
within a state.
The reason for drafting a codified constitution is usually associated with the time in which a
particular State is formed or associated with a major change that has taken place at national
level. For instance, Italy drew up a new constitution in 1948 and Germany did the same in 1949
following their defeat in World War II and also to mark the destruction of their previous regimes.
The United States drafted a codified constitution upon independence from Britain in 1787, and
India drafted a constitution after independence from Britain, in 1950.

In Britain, the constitution remains uncodified, and Bogdanor argues that the reasons for this are
both historical and conceptual. The former reflects the fact that British history has
remained continuous since 1689, and there has not been an obvious break which would have
called for drafting a codified constitution. As such, Britain has lacked a “constitutional moment”.

However, that is not to say that there have not been important historical events, which
influenced the way Britain is governed. There have been many such events: The Great Reform
Act 1832, the Acts of the Union with Scotland and Ireland in 1707 and 1801 respectively, and
the Anglo-Irish Treaty of 1921, to name a few.

Conceptually, Bogdanor argues, the reason for not having a codified constitution in Britain is
because the basis of the government is the sovereignty of Parliament; this concept seems
incompatible with a codified constitution simply because a codified constitution would limit that
sovereignty.

Codified, Uncodified, Flexible and Inflexible (rigid) Constitutions

That difference between a codified and uncodified constitution is also reflected on the fact that
what is written in the constitutional document becomes a superior law that can only be judged
by a Constitutional Court.

This brings us to another classification of constitutions as “flexible”, such as the British

constitution that can be amended with ease, and “inflexible”, such as the US constitution, which
contains entrenchments that make it very difficult to make constitutional changes.

In constitutions of the inflexible type, it is the constitution, not the legislature that is supreme.
Arguably, codified constitutions provide mechanisms to effect constitutional changes. However,
making those changes is not necessarily easy. In the Canadian Constitution of 1982, the whole
of Part V of the constitutional document lays down the procedures for constitutional amendment,
and as a consequence, the constitution is criticised for being at a standstill.
Difference between rigid and flexible constitution

Rigid constitution Flexible constitution

A rigid constitution cannot be easily amended. It has A flexible constitution can be amended
very complex modification procedures. with the same ease as the general laws.

A rigid constitution cannot be accommodated

A flexible constitution can be adjusted to
according to the changing needs of society. No
suit the changing needs of people and
legislature can tamper with them, because they are
society.
superior to the common law.

A flexible constitution is very useful for

A rigid constitution is essentially a written
a developing country because it will not
constitution composed of experienced and learned
be a hindrance to progress due to its
people. Thus it is a symbol of national efficiency.
adaptability.

A rigid constitution does not develop and expand.

A flexible constitution grows and
People consider it as a sacred document and they are
expands as nature matures.
ready to work according to its provisions.

A rigid constitution does not reflect the changing A flexible constitution reflects the
pulse of public opinion. In other words it represents changing pulse of public opinion. In
the minds of experienced and learned people who other words it represents the mind of the
initially implicated it. people.

Accordingly, legislatures should not have a

A flexible constitution is based on the
constitution in their hands. So, a rigid constitution is
sound assumption that there cannot be a
based on the assumption that it is the perfect
right constitution for all time.
constitution for all time.

Written and Unwritten Constitution

A constitution is said to be written when all the legal rules regulating the allocation of functions
and structures are contained in one document. It is also referee as written if it is ascertainable.
All constitutions in the world happen to be written constitutions.

A constitution is also said to be unwritten where some of the fundamental laws are ascertained
from sources other than the written document. It is the British constitution which usually fits in
the distinction of unwritten constitution. However it isn’t correct the constitution as unwritten
because part of it is found in documents like the Magna Carta, Act of Settlement and Bill of
Rights. some extent it is unwritten because not all the rules are written.

Difference between written and unwritten constitution

 Written constitution Unwritten constitution

An unwritten constitution contains

The written constitution is found in legal documents
principles of government that have
duly maintained in the form of law.
never been implemented as law.

It is indefinite, unsystematic and un-

It is precise, definite and systematic. It is the result of precise. Such a constitution is not the
efforts made by the people conscious and deliberate. result of the conscious and deliberate
efforts of the people.

It is not created by a representative

It is created by a representative body elected by the component assembly. So, it is
people at a particular period in history. sometimes called a developed or
cumulative constitution.

It has no fixed date, as it has evolved

It is always promulgated at a specific date in history.
over time.

The best example of an unwritten

The Constitution of India is the best example of a
constitution is the constitution of
written constitution (announced on 26 January 1950).
britain.

The unwritten constitution is not rigid

A written constitution is generally rigid and its
and its amendments do not require
amendments require constitutional laws. In other words,
any law. In other words, the
the distinction between constitutional law and common
distinction betw
law is maintained. The first is considered superior to the
een constitutional law and common
second.
law is not maintained.

A written constitution can also be called an enacted An unwritten constitution can also be
constitution. called an un-enacted constitution.

Monarchical and Republican Constitutions

Continuing the comparison between the British and American constitutions, a further
constitutional classification is possible: monarchical and republican. In the former, the monarch
is the head of state, although in Britain”s case, the powers of the monarch are limited, and the
Queen reigns in accordance with the constitution. The political power lies with the Prime
Minister. Accordingly, a constitutional monarchy is a limited monarchy. A republican constitution
on the other hand, provides for the election of a President who is the head of state and the head
of the government.

Arguably, the modern concept of a constitution has been attributed to the American Constitution
of 1787, which includes a Bill of Rights, and also to the French Declaration of Rights of 1789.
Both constitutions were created as a consequence of liberation, from colonialism and the
monarchy respectively, in order to promote The Republic, and they had behind them violent
revolutions. No longer was a constitution a body of law, institutions and customs forming the
State, but it contained the concept of republicanism: the people constituting a State.
Presidential and Parliamentary Constitutions
By the fact that a republican constitution places the power in the hands of the President, while
the British constitution places the power on Parliament, it would be possible to make a further
classification of a constitution as “presidential”, or “parliamentary”. This affects the way the
government operates. In the case of the former, the President will be the head of state and the
head of the executive branch of the government but not the head of the legislature and not
accountable to it. Furthermore, the President is not a member of the House of Representatives
or the Senate. By contrast, in a Parliamentary constitution, the head of the executive branch of
the government is the Prime Minister, who will also be the head of the executive, and also a
member of the legislative branch of the government and accountable to it.

Federal and Unitary Constitutions

In a federal system such as the one in the US, it can also be said that the constitution is a
“federal” constitution, instead of a “unitary” one. In the former, apart from a central government,
there is also government at state level, with legislative competence under the constitutional
arrangements. This is the case not just in the US but also in Australia, Canada and South
Africa. On the other hand, Britain has a unitary constitution and it is centrally governed.
However, this point may now be challenged because due to devolution powers to Scotland,
Wales and Northern Ireland, perhaps there is an incipient federal aspect to the British
constitution.

Federal constitutions usually require elaborate procedures for amendment and there is usually a
clause which provides that any amendment in the constitution which affects the distribution of
power between the central government and the state should seek consent from the people
concerned.

The powers to raise taxes may be shared between the national government and the federal
government. Federal taxes will be clearly stated in the constitution and so will state taxes eg
federal Income Tax which is to be paid to the government.

Federal governments also provides for federal territory as its centre for national capital so that
nobody can claim it.

Look at the Odoki’s Report page 239 paragraph 9.31

Political and Legal Constitutions

A further constitutional classification is a “political” and a “legal” constitution. The former is
associated with holding to account those who hold political power, because it advocates that the
making of laws is the exclusive domain of Parliament, and only when Parliament legislates,
does the law become legitimatised.

Behind a political constitution such as the British constitution is the concept of “majoritarianism”,
that is, that an elected majority should make the decisions affecting the voters, rather than
leaving those decisions to the courts.
In contrast, a legal constitution such as the American one, empowers the courts, in particular
the Constitutional Court to establish the limits of government power.
Advocates of a political constitution such as Griffith and Tomkins argue that politics is the best
way to exert government control because entrusting government accountability to the judiciary
is neither democratic nor effective, due to the fact that judges do not have the democratic
legitimacy of an elected government.

As such, a political constitution is the living representation of the politics that create it. Perhaps
an important difference between a political and a legal constitution is the weight given to the
latter. A political constitution is flexible and changeable while a legal constitution, such as the
American Constitution, has the status of a civil religion or scripture, the constitutional document
is held in high esteem and the Supreme Court has a very high status within the country as the
“guardian” of the Constitution.

An example of constitutional zeal is seen in the “Tea Party”, which advocates carrying a copy of
the constitution at all times. Furthermore, literal constitutional interpretation by the Supreme
Court has helped to perpetuate the second amendment which allocates a right “to keep and
bear arms”, interpreted by the more liberal as applying only to a “well regulated militia” but
interpreted by the Supreme Court in District of Columbia v Heller as allowing the citizens to
keep and bear arms regardless of whether certain states had banned weapons based on public
safety.

Arguably, the British political constitution based on the sovereignty of Parliament has changed
through the enactment of the European Communities Act 1972 (ECA) which incorporated the
European Union (EU) Treaties into the British constitution, allowing also for the primacy of EU
law.

A further constitutional change was the incorporation of the European Convention on Human
Rights into national law by the enactment of the Human Rights Act 1998 (HRA), in order to
protect fundamental rights which were not considered to be protected by common law in a
sufficient manner or to have proper judicial articulation.

Critics may argue that this is a sign that the British political constitution is beginning to show
tendencies towards becoming a legal constitution, and that both the ECA and the HRA have
created entrenchments. However, it could also be argued that this is merely the effect of Britain
being part of a global economy, and that because it remains uncodified, the British constitution
remains flexible, and able to change with the times

Conclusion
In conclusion, whether a constitution is codified or uncodified, flexible or inflexible, presidential
or monarchical, republican or parliamentary, political or legal, the one thing they have in
common is that all constitutions are unique. Parpworth states, quoting Finer, that the reason for
this uniqueness is that all constitutions contain autobiographical elements, and they are
therefore idiosyncratic. Furthermore, they are based on different historical contexts that have
generated different preoccupations, and therefore different priorities.

Despite that, it can be argued that there is a general level that should be upheld in every
constitution regardless of how it is classified: a democratic basis, protection against the abuse of
power, promotion of the separation of powers, implementation of the rule of law and a proper
system of checks and balances to effect government control. Constitutional maintenance should
occur through active constitutional surveillance and assessment. In that sense, a political and
flexible uncodified constitution has a better chance to do so, and to develop organically
according to the needs of the times. However, each constitution should be able to operate within
its own core of custom, convention, case law and compromise.

DEMOCRACY AND DICTATORSHIP

When human rights were introduced to the world, some degree of humanity was restored to it
additional development were made to get the general and and public welfare. When the
government were despotic, the kings and the rulers exploited people in every possible way till
the time concepts like democrancy, socialism and communism came into being.

WHAT IS DEMOCRACY?
Democracy is the term coined for the government of the people, by the people and for the
people. In this system, the citizens get to decide who deserves to rule them. In that sense
people have rights to agree or disagree with the laws implemented by the legislature. in
democracy people chose their representatives who act on their behalf and make decision as per
the popular vote. As against the tyrannical rule, in democracy people are free to acquire
property and manage, sell and whatever they like to do with it .people are happy with their rulers
because what matters the most in democracy is the public welfare.

PRINCIPLES OF DEMOCRACY
Originary democracy a Greek concept of governance and an Ancient Greek, it was accepted as
the best form of governance where all citizens would meet and deliberate on the affairs that
concern them.
Today democracy means representative democracy where all people participate in government
affairs with their newly elected representatives. This implies the following:
a) Election: People acquire positions of political authority through the system of election
and the usual system of election is one which guarantees equality of all citizens and the
acceptable method is one man one vote. In addition the system of election must
guarantee freedom of choice where there is no intimidation and un due influence.
b) Periodic election: these enable the people to re assess the persons that they elected ie.
They can be recalled.
c) Equality: equality inform of opportunities or facilitilities that is to stand for an election and
be voted to office. The usual requirement for a person to be elected to be elected into
office should not be discriminatory interns of coulor, sex or religion.

Some provisions of democracy are laid down in the 1995 constitution of the republic of
Uganda. They are put there to guide government and the people to use in order to
access government.

DICTATORSHIP- THE TYRANT RULE

 In contrast, dictatorship is a rigid form of government in which people are not given the
liberties they could otherwise get in the democratic form of government. The head of
state is not elected by them. He takes power either by means of military coup d’état or
any other situation which is totally unfavourable for the citizens. The status quo remains
intact till people rise and strip the government of its power. It is an authoritatarian form of
government in which the word of dictator is law. He imposes sanctions upon the citizens
if they dare to disobey him.

However, sometimes dictatorship is not as bad as it sounds. This system has been
advocated by a lot of great philosophers like John Austin. According to him, the people
deliberately surrender their rights to the king in turn of peace and tranquillity he
maintains under his rule. He makes laws without letting people have their say. He takes
critical decision as he deems fit without any delay and uprisings in the decision making
process. In this way it’s away faster and efficient form government as per Austin

KEY DIFFERENCES BETWEEN DICTATORSHIP AND

DEMOCRACY
a) Power:
In dictatorship the power belongs to the dictator where as in democracy people
are the ultimate rulers.

b) Laws:
Laws in dictatorship are framed by the dictator whereas people are the law
makers in democracy.

c) Freedom:
In a democracy, people have their rights recognised in the constitution of their
state which are called fundamental rights that can never be suspended by the
government. In dictatorship, the dictator promises no rights to his subjects.

d) Self – indulgence:
In a democracy, people are indulged in all decisions related to economic, social,
political and military affairs. Whereas in dictatorship who are people to decide?
They just sit back and follow.

e) Justice:
In democracy, people can rise when justice is denied to them, whereas on the
other hand they dare to rise against the dictator because he wouldn’t be taken to
task even if he executes someone

Over all, democracy is regarded as the purest form of government. It’s not that the public
actions are not regulated in democracy. They’re also penalised for the crimes they
commit. It is the most stable system under which both the ruled as well as the rulers are
contented.

TYPES OF DICTATORSHIP
Military dictatorships
Military dictatorships are regimes in which a group of officers holds power, determines who will
lead the country, and exercises influence over policy. High-level elites and a leader are the
members of the military dictatorship. Military dictatorships are characterized by rule by a
professionalized military as an institution. In military regimes, elites are referred to as junta
members, who are typically senior officers (and often other high-level officers) in the military.
This type of dictatorship was imposed during the 20th century in countries such as, Chile by
Augusto Pinochet, Argentina by Jorge Rafael Videla and other leaders, Uruguay by Juan Maria
Bordaberry, Paraguay by Alfredo Stroessner, Bolivia by Hugo Banzer, Brazil by Humberto de
Alencar Castelo Branco.

Single-party dictatorships
Single-party dictatorships are regimes in which one party dominates politics. In single-party
dictatorships, a single party has access to political posts and control over policy. In single-party
dictatorships, party elites are typically members of the ruling body of the party, sometimes called
the central committee, politburo, or secretariat. Those groups of individuals controls the
selection of party officials and "organizes the distribution of benefits to supporters and mobilizes
citizens to vote and show support for party leaders".

Current one-party states include China, Cuba, Eritrea, Laos, North Korea and Vietnam, The
Sahrawi Arab Democratic Republic, which is not recognized by the UN, is also a one-party
state.

Personalist dictatorships
Personalist dictatorships are regimes in which all power lies in the hands of a single individual.
Personalist dictatorships differ from other forms of dictatorships in their access to key political
positions, other fruits of office, and depend much more on the discretion of the personalist
dictator. Personalist dictators may be members of the military or leaders of a political party.
However, neither the military nor the party exercises power independently from the dictator. In
personalist dictatorships, the elite corps are usually made up of close friends or family members
of the dictator. These individuals are all typically handpicked to serve their posts by the dictator.

As such dictators favor loyalty over competence and in general distrust intelligentsia, members
of the winning coalition often do not possess professional political careers and are ill-equipped
to manage the tasks of the office bestowed on them. Without the dictator’s blessing they would
never have acquired a position of power. Once ousted, chances are slim they will maintain their
position. The dictator knows this and therefore uses such divide-and-rule tactics to keep their
inner circle from coordinating actions (like coups) against them. The result is that such regimes
have no internal checks and balances, and are thus unrestrained when exerting repression on
their people, making radical shifts in foreign policy, or even starting wars (with other countries.)

According to a 2019 study, personalist dictatorships are more repressive than other forms of
dictatorship.
The shift in the power relation between the dictator and its inner circle has severe
consequences for the behaviour of such regimes as a whole. Many scholars have identified
ways in which personalist regimes diverge from other regimes when it comes to their longevity,
methods of breakdown, levels of corruption, and proneness to conflicts. The first characteristic
that can be identified is their relative longevity. For instance, Mobutu Sese Seko ruled Zaire for
32 years, Rafael Trujillo the Dominican Republic for 31 years and the Somoza family stayed in
power in Nicaragua for 42 years. Even when these are extreme examples, personalist regimes,
when consolidated, tend to last longer. Barbara Geddes, calculating the lifespan of regimes
between 1946 and 2000, found that while military regimes on average stay in power for 8.5
years, personalist regimes survive almost twice as long: on average 15 years. Single-party
regimes, on the other hand, used to have a lifespan of nearly 24 years. Monarchies were not
included in that research, but a similar study sets their average duration at 25.4 years. This may
seem surprising, since usually personalist regimes are considered among the most fragile
because they do not possess effective institutions nor a significant support base in society.
Studies on the probability of their breakdown found mixed results: Compared to other regime
types they are most resistant to internal fragmentation, but more vulnerable to external shocks
than single-party or military regimes. The second characteristic is how these regimes behave
differently regarding growth rates. With the wrong leadership, some regimes squander their
country’s economic resources and bring growth to a virtual halt. Without any checks and
balances to their rule, such dictators are domestically unopposed when it come to unleashing
repression, or even starting wars.

Monarchic dictatorships
Monarchic dictatorships are in regimes in which "a person of royal descent has inherited the
position of head of state in accordance with accepted practice or constitution." Regimes are not
considered dictatorships if the monarch's role is largely ceremonial, but absolute monarchies,
such as Saudi Arabia, can be thought of as hereditary dictatorships. To be considered a
dictatorship, political power must have been promised to the people but in reality is exercised by
the monarch for regimes, but since the power of the government was never promised to the
people in the first place it is not a dictatorship but an authoritarian government. Elites in
monarchies are typically members of the royal family.

Hybrid dictatorships
Hybrid dictatorships are regimes that blend qualities of personalist, single-party, and military
dictatorships. When regimes share characteristics of all three forms of dictatorships, they are
referred to as triple threats. The most common forms of hybrid dictatorships are
personalist/single-party hybrids and personalist/military hybrids.
 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
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.

(c) 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

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,
For example, 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.

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. Constitutional Petition. No. 8 of 2000

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.

CATEGORIES OF CITIZENSHIP
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; 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;

(IV) 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.

(V) 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;

(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.

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 Parliament21
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.
(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 order22. This right and duty was re-echoed in the case of The Uganda Law
Society & anor v. AConstitutional Petition no. 8/ 2000 , 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 under Article 3(4) of the
Constitution of the Republic of Uganda 1995

3. To respect the national anthem, flag, coat of arms and currency Article 17 of the Constitution
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;
14. Protection of the territorial integrity of Uganda whenever called upon to do so;
15. To be patriotic and loyal to Uganda and to promote its well-being;
16. To engage in gainful work for the good of that citizen, the family, the common good and to
contribute to national development;
17.To contribute to the well-being of the community where the citizen lives;
18. To promote responsible parenthood;
19. To foster national unity and live in harmony with others;
20. To promote democracy and the rule of law; and;
21. To acquaint himself or herself with the provisions of the Constitution and to uphold and
defend the Constitution and the law.
 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;

4. In some cases sovereignty of parliament.

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 and 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.

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 book 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;
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?

Many scholars have attacked Dicey:

Leiser - faire (capitalist) liberal;

Unfettered state regulation;

Other agents of Rule of Law (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:

(a) One that can maintain law and order throughout the country and command the obedience of
all decisions;
(b) 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;
(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. 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.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 are 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.

10. The rule of law also demands respect of social affairs and their recognition and that people’s
rights should be protected and promoted.
 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 Montesquieu , 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 other

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”

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 THE DOCTRINE OF SEPARATION OF

POWERS IS MANIFESTED IN THE 1995
CONSTITUTION

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.

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 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: .

(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 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);
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: “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.”

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 18 years and above;
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 20 million
Shillings. 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
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 ARE:

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:
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.

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 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.

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 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. 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

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)

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:

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.
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.G. 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 Clause 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 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;
iv. 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.

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 legislativecompetence i.e. The
power to make any law without restriction (See Edinburgh Dalke ith and Bradlaugh vs.
Gosset. (1884) 7 QB 271 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) ”.

But in the later case of Paul K. Ssemwogerere & Zachary Olum v. AG Supreme Court
Constitutional Appeal 1/2000

“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….”

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. AG Constitutional Petition 3/00, 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 Under 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 under 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 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:

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

ii. 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’ under 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;

iii. 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;

iv. 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.

v. The restriction unders. 12 (8) of the impugned Act of 72 hours written notification to the
Subcounty 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;

vi. The method of voting of ‘Question put and agreed to’ does not show how the majorities were
determined and this is provided under Art. 89 of the Constitution;

vii. 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 under 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.

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 :

This point was also emphasised in the case of Paul Kawanga Semwogere v. A.G that a system
set in place by or under an Act of Parliament or any law can be challenged under Article 137 of
the Constitution at anytime notwithstanding 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 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:

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.
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:

Limitations:

i) Public Policy

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 AG the Constitutional Court pointed out that Parliament
under 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, 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 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 (1969) EA P.62, 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.
(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, the AG Supreme Court Appeal 1/97, 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.G47 which was
dismissed because the petitioner had failed to get permission from the Speaker.

Also see OPOLOTO’s case.

Freedom of all members of parliament when going to attend or returning from a sitting of a
Committee of the Assembly;
 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;

Parliament has the power to regulate its own proceedings and also to be paid adequate
remuneration

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 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

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)

Parliament 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.

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,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:-

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:

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: -

1 ST 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 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. AG Constitutional Appeal No.1 of 2005 court 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.”

2 ND 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 3rd reading. All amendments that are agreed upon will be
noted and incorporated into the main bill by the draftsman and clerk.

3 RD 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 2nd reading it is
already law). What is required next is the presidential assent.

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 3rd 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.

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 according to.
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 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. 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 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.
 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 Judiciary 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 are 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?

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.

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 Constitutional
Petition 6/04, 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. Under art. 129 (1) (d) Parliament cannot establish
Courts that are superior to the High Court. It can only establish ‘subordinate Courts’ which under
art. 257 mean a court subordinate to the High Court. Such subordinate Courts include the
General court-martial.

Furthermore, 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.

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 AG , 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 again confronted with the same issues in the most recent case
of Uganda Law Society v. A.G 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?

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.

But later in Miria Matembe & Ors. V. AG Constitutional Application no.2/05 , 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;

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?

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 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 under 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. AG 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.
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 under 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.

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 as per 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, 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 under 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. 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 under 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 system that fails to pay its judicial officers well and
insulate them from the corrupting public;

(VI) The maintenance of judicial independence under 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

ACCESS AND SPEED OF DETERMINATION OF A

CASE
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. AG . 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 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
Constitutional Petition no. 1/02, 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 & Ors Constitutional Petition no. 2/2002 , the petitioner
proceeded to the Constitutional Court Under 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 Under art. 50 of the
Constitution. The Constitutional Court has jurisdiction to entertain matters that would otherwise
fall Under art. 50 if this is done in the process of a Constitutional interpretation Under art. 137 of
the Constitution.
” The court thus concluded that for the enforcement of the rights and freedoms under 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 under 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 Constitutional Petition no. 7/97 . 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 under 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 under 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, under LN no. 3/96.’ They
are modified from S.1 25/92, ‘The Interpretation of the Constitution (Procedure) Rules, 1992.’

Therefore, under art. 137, the Constitutional Court can sit to interpret the Constitution under art.
137 (3) at the instance of a party as in the instant case or under 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 under art. 50 (4). Therefore,
under art. 273, the usual rules of procedure applicable to any courts of Judicature do apply as
existing under rule 13 of LN 4/96 except where any question for interpretation arises and is
referred to the Constitutional Court under 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. AG Constitutional Petition no. 3/00 sought to challenge
the validity of the Referendum (Political Systems) Act, 2000 for having been passed without
following the proper procedures and 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 Under 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 Under art. 137 (3).

Furthermore, a system set in place by or under an Act of Parliament or any law can be
challenged under Article 137 of the Constitution at anytime notwithstanding the repeal or expiry
of the Act. In the case of Philip Karugaba v. AG, one of the issues concerned the extent of the
jurisdiction of the Constitutional Court. The Petition sought to challenge rule 15 of the Rules of
the Constitutional Court (Petition for Declarations Under 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 Under
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 Under 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. AG 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.

The Constitutional Court held that the Constitutional Court was created under Art.137 to deal
with questions relating to the interpretation of the Constitution. Declarations by this Court can
only be brought under Art. 137 and rule 3 (1) of Legal Notice no. 4/96. Petitions for the
enforcement of rights and freedoms under 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
under Art.137 (5).

In the case of Haruna Kanabi v. Uganda Criminal Appeal 72/95 , 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 under Ss.
41 and 42 of the Penal Code Act on the other hand and the provisions of the 1995 Constitution
relating to freedom of speech, press, etc on the other as guaranteed under 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 under 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 under 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 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 under 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 Penal
Code Act 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. AG Constitutional Petition no. 1/01 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 Constitutional Petition no. 2/99, 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
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 Constitutional Petition 11/97, 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.G Constitutional case no. 3/97 , 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.G Constitutional Petition no. 4/97. 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 Under 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.
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.G. The petitioner who
claimed to be affected by the decision reached by the Court of Appeal in the case of Bakunda
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’ Underart.
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.G 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.’
Finally, in the case of A.G v. Osotraco Ltd, the Court of Appeal pointed out that “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. Uganda, 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 the applicant sought to challenge the provisions of the
Expropriated Properties Act85, 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 Departed Asians Decree,86 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.G 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.G 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 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, 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. AG Constitutional Petition no. 2/97, 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. 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. AG Constitutional Petition no. 6/99, 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 Constitutional Petition no. 5/04,
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 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 AG Constitutional Petition 6/04, 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 Civil Appeal 32/02, 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, Constitutional Cause 1/03, 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.

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. AG, Constitutional Petition 8/2003, Constitutional Petition 6/03, 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 nonderogable 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, 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.

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.

In the case of Dr. James Rwanyarare & anor v. A.G, Constitutional Petition 11/97, 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 requirement for litigants to comply with the
rules of procedure of litigation.
The Article 96 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. AG Constitutional Case no. 3/97, 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 under rule. 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 & Ors, Constitutional Petition no. 2/01, 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 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
25th 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.G, Constitutional Petition no. 8/2000, 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.G, Constitutional case no. 3/97, 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’s ,Court of
Appeal Civil Appeal no. 27/96, 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.

In the case Serapio Rukundo v. A.G,Constitutional Case no. 3/97, the Constitutional Court held
that The purpose of the requirement under rule. 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.

In the case of Al Haji Nasser Ntege Sebaggala v. A.G & Ors, Constitutional Petition 1/99, 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.

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, Constitutional Petition 8/2003, 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.

In the case of Serapio Rukundo v. A.G, Constitutional Case no. 3/97, 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, Constitutional Petition no. 7/00 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.267 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 under art. 258, the second one underArt. 259 and the last one u/art.
260. Each of those categories has its own procedure. While those passed under art. 258 are the
general amendments and do not require the holding of a Referendum or approval of the Districts,
those passed under art. 259 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 under 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 under 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 under arts. 259 & 260 but not under
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, three Makerere University Seventh Day
Adventist Students brought an action in the Constitutional Court against the University seeking
inter alia a declaration Under 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 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.G, Constitutional Petition 6/99. 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, Civil Appeal 32/02, 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.

RIGHTS AND FREEDOMS INCLUDE THE

FOLLOWING:
RIGHT TO BAIL:
In the case of Charles Onyango Obbo & Anor v. A.G, Criminal Miscellaneous Application 145/97,
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.

Furthermore, 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 under s.74 (1)
Magistrate Court Act. 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.

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 case under 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 under 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.G, Constitutional Petition no. 6/2004 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 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
courtmartial 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 under Article 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 under 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.

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 subjiciednum, 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.

FREEDOM OF WORSHIP

In the case of Dimanche Sharon & Ors v. The Makerere University, Constitutional Cause 1/03,
the petitioners, Makerere University Seventh Day Adventist Students brought this action against
the University seeking inter alia a declaration under 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 under
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.
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. 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.
XVI. 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 under art. 30
XVII. The respondent’s duty to accommodate the Seventh Day Adventist Students Minority is
conditional on the policy on the petitioner’s rights under 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, Criminal Appeal 72/95, 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 case under s. 41 (1) (a) and s. 41 (1) (c)
and publication of false news case under s. 50 (1) both offences under the penal Code Act
 (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

(I) It is apparent that by their character and timing, the contents of the Publication by the appellant
that alleged that Rwanda was the 40th 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.

(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 Centre, Civil Division Application 589/05,
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 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.

(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, Constitutional Cause 1/03,
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
under 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
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 under 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 under 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, Constitutional Case no. 9/97, 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.

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 under sections. 4 &5 of the Expropriated
Properties Act, 1982. He was reinstated as the registered owner thereof and the defendant
promised compensation under section. 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 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.

(5) 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 Ltd, Civil Appeal no. 32/02

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 under art. 50 of the Constitution
 In the case of Phillip Karugaba v. AG, Constitutional Petition no. 11/02, the petition sought to
challenge rule 15 of the Rules of the Constitutional Court (Petition for Declarations Under art.
137 of the 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. .

1. 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;

2. 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;

3. 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 under art. 137 (5) of the Constitution;

4. 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;

5. 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;
6. Rule 15 of the Rules of the Constitutional Court (Petition for Declarations Under art. 137
of the Constitution) Directions 1996 is mandatory. A petition abates upon the death of a sole
petitioner;

7. 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 Under rule. 15 and that there was no provision made for prompt payment of fair
and adequate compensation.

In the case of Salvatori & anor v. AG, Constitutional Petition no. 2/97, 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.

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 of the Republic of Uganda 1995, 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 defence, 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. AG, Constitutional Petition no. 2/97, 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 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. AG, Constitutional Petition no. 6/03 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;
(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 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 under 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

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.
In the case of Suzan Kigula v. AG Constitutional Petition no. 6/03, 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 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 under 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.

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 v. AG, Constitutional Petition no. 6/03, 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;

(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 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);

(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 articles 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 under 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. AG,
Constitutional Petition no. 2/97, 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 and sentence have been confirmed by the highest appellant court. 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, 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 Constitutional Petition no. 2/97 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. Laws of Uganda, Cap. 120
mistake of fact, insanity, intoxication, compulsion and the defense of person/property. The
operation of these defenses must however be limited to the meaning and scope 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 case of Suzan Kigula & Ors v. A.G, Constitutional Petition no. 6/03, 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 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.

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.
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.

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, inviolable and cannot be suspended. 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 reference from the High Court of Uganda and Re: Sheik Abdul K. Sentamu
& Anor,143 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. 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 under 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;

(c) 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 Sebi, Criminal Session
227/75 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 charge.

(d) 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. AG

The importance of the observance of the provisions relating to bail cannot be over- emphasized.
Thus, in the case of Joseph Tumushabe v AG 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 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 Criminal Session 227/75 Joseph Tumushabe v. AG, 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 under 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.

END