KAMPALA INTERNATIONAL UNIVERSITY

CONSTITUTIONAL LAW NOTES

LECTURER: ANNETTE KARUNGI

JANUARY 2024

THE RULE OF LAW

The rule of law basically derived from the concept postulated by Prof. Dicey in
his book. THE LAW OF THE CONSTITUTION, in which he argued that to
remove government from dictatorial tendencies, it is necessary to place
government not in the control of men and women but rather to subject it to the
principles and rule of law.
Prior to Prof. Dicey, Lord Bracton had stated in the 13th Century that even the
king was subject to divine law.
According to Prof. Dicey, there are three basic elements that form the rule of
law:

(i) Absolute supremacy of the law as opposed to the arbitrary exercise of

government power. The presumption is that the law prevails over actions
and conduct of men and women exercising authority and power in the
government.

In effect power must not be exercised arbitrarily but in accordance with the
law. A manifestation of this element of the rule of law is stipulated in
Article 2(1) of the 1995 Constitution.
Article 2(1) requires that the conduct of organs of government conform to
the provisions of the Constitution, which is the supreme law.
In effect the Executive, Legislature and the judiciary must perform their
duties and functions in accordance with the provisions of the constitution.

(ii) Equally before the law. There must be equality of all individuals before the
law. This formed the second element of Dicey’s formulation of the rule of
law. The presumption is that all individuals must be treated and dealt with
equally before the law without any differentiations as to social status,
political opinion and other grounds.

This second element of the rule of law is contained in several provisions of

the 1995 constitution in particular Article 21(1)(2) which provides for

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 equality and freedom from discrimination, Article 26(2)(a) which provides
for justice irrespective of the social status.

(iii) The law must be an instrument of just government. According to Pro.

Dicey, the government should be built on justice and good governance in
which the welfare and rights of citizens are promoted rather than violated.

This is provided for under Articles 20(2) and Article 79(2) of the 1995
constitution.

Prof. Dicey’s three elements of the rule of law have remained intact with
modifications according to the evolution of democratic societies in the 20th
century.
In the modern era, the rule law has been articulated under several principles
developed by the International Commission of Jurists (I.C.J) at a
conference in Geneva in 1959. the I.C.J. formulated what were considered
guiding principles for determining the existence of the rule of law in
modern states.
(a) There must be the existence of a strong government not as a dictatorial
government but a government that is effective in that it is able to
maintain law and order throughout the country and in which the
people obey the laws and regulations of the state.
(b) The governance of a sate must be in accordance with the law.
Therefore, all actions undertaken whether by the Executive,
Legislature or Judiciary must be backed by the law therefore law is
placed above government and government is made the trustee or
custodian of the law. In this regard the supposition is that laws are put
and upheld by the judiciary.
(c) There must be equality before the law in that the law is consistently
and equally applied to all citizens.

(iv) There must be independence of the Judiciary. The relevance of

judicial independence to the rule of law was seen to arise from a
number of concerns;

(a) The supremacy of the law to the extent of its meaning and content
could content could only be determined by the judiciary.
(b) It was imperative that in upholding the law and ensuring equality
before the law, that the judiciary should not be subject to the control
and influence of the other two arms of government.

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 (c) For the rule of law to prevail in that government is subject to the law,
the other organs of government must respect and give effect to the
decisions of the judiciary.
(d) There must be respect, protection and promotion of fundamental rights
and freedoms.

(v) There must be a representative government therefore there must be on

opportunity for the people to participate in the affairs of the state either
directly if possible or through elected representatives.

Few countries in the world, if any, can claim to embrace all the aspects of
the rule of law in theory and practice. On the other hand, there is no single
state that admits to having done away with it altogether. Indeed, the states’
diplomatic practice is the projection of the rule of law. When it is obvious
that a country has infringed some principle of the rule of law, such a
country endeavours to justify her actions as constituting special
circumstances.

As long as governments and bureaucratic institutions continue to regard the

rule of law as the standard norm by which their actions should be judged,
the rule of law will continue to play a major role in a just and democratic
society.

FUNDAMENTAL RIGHTS AND FREEDOMS

Most modern constitution provide for a Bill of Rights. The 1995 Constitution
provides for rights and freedoms under chapter four. The rights contained in
chapter four include:

1. Civil and Political rights

These are construed as first generation rights including. The right to
liberty, fair trial, and freedom from torture, freedom of expression,
association and assembly.

2. Social, Economic and cultural rights

These are construed as second-generation rights.
Article 37 provides for cultural rights. Article 26 provides for the right to
property.

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3. Group or collective rights
These are construed as third generation rights.
Article 30 provides for the right to education, Art. 39 a clean and healthy
environment. Others include a right to development, peace and self-
defense, which came about as a result of colonialism. The constitution
has also created rights in favour of specific persons including children
Article 34, persons with disabilities Articles 35, women Article 33.

Chapter four commences with Article 20, which seeks to define the
essential character of rights in the Bill of Rights as well as responsibility
for the protection and promotion of rights.
Article 20(1) provides that fundamental rights and freedoms are inherent
and not granted by the state.
This differs from the idea of natural rights and that rights accrue to the
dignity and worthy of the individual.

There are certain rights that can indeed be called fundamental given that they are
non derogable. (Cannot be limited or restricted). These are provided for under
Article 44 to include:

1. Freedom from torture, and cruel, inhuman or degrading treatment or

punishment, Article 24.
2. Right to a fair hearing, Article 28.
3. Freedom from slavery, servitude and forced labour, Article 25.
4. A right to an order or habeas corpus, Article 29(9).

The inherence of rights under Article 20 means that human rights are not
absolute with the exception of those rights that are non-derogable under Article
44, the rest of the rights under chapter 4 can be subjected to restrictions under
the provisions of Article 43.

Article 20(2) places a duty and responsibility on the part of the state agencies
and organs as well as private individuals to uphold respect and protect human
rights.

In the case of Kawaludio Wamala Vs. Uganda, Crim. Session case No. 442 of
1996,

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The appellant had been tortured by the police and as a result of which he made a
confession to the court, which confession was then admitted in evidence against
him and upon which he was convicted.
He appealed on the basis that the evidence based on the confession should not
have been admitted.
The High Court judge held that since the confession had been obtained as a
result of torture, it should not have been admitted in evidence. More
significantly, the court held that the action of the police amounted to a failure to
uphold and protect the rights of the appellant in terms of the provisions of
Article 20(2).

Article 21 provides for the right to equality. Article 21(2) provides for the
grounds of discrimination as including sex, race, ethnic origin, religion, social-
economic standing, political opinion, disability etc.
Article 21(3) defines discrimination as giving different treatment to different
persons because of their description by the ground sin clause (2).
In the case of Longwe Vs. Intercontinental Hotels, [1993] 4 LRC 221
(Zambia SC), the petitioner went to the Intercontinental Hotels in Lusaka and
was denied admission into the Hotel bar because it was a policy of the hotel not
to admit unaccompanied women into its bar.
The Supreme court of Zambia held that the policy of the hotel was
discriminatory on grounds of sex.

Article 21(4) embodies the concept of affirmative action, that is, a positive
discrimination in which laws and polices can be put in place to uplift the status
of groups of person that have traditionally been marginalised. Article 21(4) is
closely inter-related with Articles 32(1), 33(5) and 35.
Aspects of affirmative action include:

The 1.5 extra free point added to admission of female students to Makerere
University, one female representative per district, 30% of local government
bodies 4 women representatives, 2 children out of 4 for UPE should be girls.

Article 22 provides for the right tolife. The Article guarantees the right of life
except in execution of a sentence passed in a fair trial by 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 appellate court.
Article 22(2) provides that no person has the right to terminate the life of an
unborn child except as may be authorised by law.

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In respect of the unborn child, the right to life can be deprived as authorised by
law. This essentially where there are medical reasons for terminating the
pregnancy where the life and health of the mother are endangered.

Traditionally, the right to life is concerned with the physical termination of the
individual. However, there have been modern trends toward extending the right
to life to include positive attributes that ensure the sustenance of life and
therefore the concept of the right to life includes the right to livelihood and that
therefore it encompasses concerns of shelter, food, employment, healthy and
clean environment.

In Tellis Ors Vs. Bombay Municipal muw Corporation & Ors [1987] LRC
357, it was argued that the act of the respondent in removing pavement dwellers
and demolishing shanty structures of slum dwellers infringed their right to life
under Article 21 of the Indian constitution.
The Supreme Court held that the right to life should be interpreted as widely as
possible to include the right to livelihood. The court upheld the petition under
the removal of pavement dwellers without the responsibility of providing an
alternative source of livelihood, infringed the right to life of the person in
question. Demolition of the shanty dwellings by which the person involved were
deprived of shelter was also held to be an infringement of the right to life.

In Salvatore ABuki Vs. A.G. Constitutional case No. 1 of 1997; the

petitioners were sentenced to an exclusion order from their ancestral lands for 10
years under the provisions of the Witch Craft Act.
The petitioners alleged among others that the exclusion order had the effect of
denying the petitioners access to their ancestral lands and homes and taking
judicial notice of the fact that there were peasants whose lives revolved around
land and subsistence farming. The order affected their access to food and shelter
and therefore their right to life.

Court stated that their banishment from their ancestral home would amount to
deprivation of the petitioners the right of shelter and food that they had in their
ancestral homes and this would in effect endanger their right to life.

Article 24 provides for the right to freedom from torture, cruel, inhuman or
degrading treatment or punishment. The marginal note to Article 24 construes
the freedom as protecting the dignity of the individual but it also extends to the
physical and psychological integrity of the individual. The freedoms under
Article 24 are non-derogable under Article 44(a).

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Torture refers to the physical and psychological infliction of pain and suffering
while cruel, inhuman or degrading treatment or punishment refers to that
treatment or punishment the dehumanizes, abuses and humiliates an individual.

Since 1995, government agencies and organs have continued to carry out of
toruture in police cells, prisons and military detention canters in violation of
Article 24. a number of such acts have resulted into petitions before the Uganda
Human Rights Commission.
The questions that have come before the courts have involved the
constitutionality of corporal punishment as part of sentencing by the courts.

In Simon Kyamanywa Vs. Ugand, Crim. App. No. 16 of 1996, The appellant
had been sentenced to imprisonment and 6 strokes of the Cain. He challenged
the constitutionality of the corporal punishment as part of his punishment and in
effect the provisions of section 274 of the Magistrates Court Act.

Although the Supreme alluded to the fact that corporal punishment was indeed
inhuman and degrading punishment under Article 24 of the Constitution, it
referred the matter to the constitutional court.

Thus in the case of Simon Kyamanya Vs. Uganda Constitutional Ref. No. 10
of 2000, the constitutional court held that corporal punishment was indeed an
infringement of the freedom from inhuman and degrading punishment
guaranteed under Article 24.

Article 23 guarantees the right to personal liberty as well as provides for

procedural and remedial recourse to courts for realization of the right to personal
liberty.
Article 23(1) provides for the instances in which the right to personal liberty may
be taken away or deprived and these are:

(a) In respect of administration of justice maintenance of law and order and

these are paragraphs (a), (b) and (c) of clause (1) which are concerned with
the execution of a sentence of imprisonment for a criminal offence.
And any obligation imposed by law as well as arrest for the purpose of
bringing a person before a court on grounds of commission or suspicion of
commission of a criminal offence.

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 Article 23(1) is subject to the provisions of Article 23(4) which requires
such a person arrested for a commission or reasonable suspicion of
commission of an offence to be produced before court within 48 hours. In
the case of Ochieng vs. Uganda (1969) E.A, 1 the appellant had been
detained for over 7 days without any grounds for his detention being
explained to him.
The High Court of Uganda held that failure to explain ground of detention
and the period of time spent in custody amounted to infringement of the
appellant’s right to personal liberty under Article 10(4) of the 1967
constitution.

(b) The other limitation under Article 23(1) is for the purpose of p preventing
the spread of an infectious or contagious disease under Article 23(1) (d).
(c) The third instance of deprivation is in respect of certain categories of
persons under, that is,
(i) Minors for the purpose of their education or welfare.
(ii) Lunatics or drug addicts and alcoholics for the purpose of their
treatment of protection of the community.
(iii) Aliens, for the purpose of preventing unlawful entry of that person
into Uganda, or for the purpose of effective the expulsion,
extradition or other lawful removal of that person from Uganda or
for the purpose of restricting that person while being conveyed
through Uganda in the course of the extradition or removal of that
person as a convicted prisoner from one country to another.
Article 23(1) (h) provides for other instances of deprivation but
which must be similar to those specified in paragraphs a-g.

Article 23(2) provides that a person who is arrested or detained is to be kept in a

place authorised by law. A place authorised by law is one that is gazetted as a
place for detaining individuals and is also accessible to the public.
Traditionally, places of detention are police cells and government prisons as well
as minors or children’s homes. They exclude military detention centers in
barracks as far as civilians are concerned and excludes safe houses.

The purpose of Article 23(2) is to prevent incommunicado detention, which

often results in the disappearance of individuals. In this regard, Article 23(2) is
closely related to Article 23(5), which guarantees the right of a detained
individual to reasonable access to and, by the next of keen, lawyer and personal
doctor. In assence, Article 23(2) and (5) guarantee what is refereed to as
security of the person of the individual.

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Article 23(3) guarantees the right of a detained or restricted person to be
informed of the reasons of detention and of the right to consult legal counsel of
his or her choice.
Article 23(3) embodies the traditional police caution, which must nonetheless
include informing the accused of the right to consult a lawyer, the accused of the
right to consult a lawyer.

It has been held that where only a police caution has been read to the accused
without additionally informing him of his right to consult a lawyer, the accused’s
rights under the equivalent of Article 23(3) had been violet.

In the case of Queen Vs. Feeney (1997) 3LRC 37, the police entered the
dwelling place of the accused, aroused him from sleep, began to search through
his trailer where they found blood stained clothes, money and cigarettes
presumed to have been stolen. All these police acts took place without a search
warrant. A police caution was then read to the accused but no mention of the
right to legal counsel was made.
The Canadian Supreme Court held that the accused’s right to immediate legal
counsel in respect to section 10(b) of the Canadian Charter of Rights and
Freedoms had been infringed.

Article 23(6) guarantees the right to grant of bail. Grant of bail is a balance
between the right to personal liberty and the administration criminal justice, that
is, thei right of the accused to be free while at the same time attending his or her
trial and therefore discretions given to courts whether or not to grant bail and on
what conditions.
The criminal justice system is based on the principle of presumption of
innocence of an accused and thereore grant of bail protects this principle.

In the case of ONyango Oboo & Onor. Vs. Crim. Misc. App. No. 145 of 1997,
the appellants had been granted bail by the Chief Magistrates court at a figure of
Shs. 2 million per accused. They appealed to the High Court that the figure was
excessive. It was held that the purpose of the right to grant of bail under Article
23 was not only to secure the personal right of the individual but was also
formed on their rights to presumption of innocence under Article 18(3)(a) which
would be defeated by such an excessive bail amount. Consequently, the judge
ordered the bail to be reduced to Shs. 200,000 per accused.

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There are instances where laws are passed to exclude grant of bail in instances of
certain cases for example, the Trial on indictment Amendment Statute of 1985
excluded grant of bail in respect of terrorism.

In Okot Vs. Uganda ]1987] H.C.B 4, The appellant sought to challenge the
constitutionally of the 1985 Statute as infringing on the right to grant bail b y the
courts.
The court held that the accused’s rights were limited by that Statute in public
interest.

Article 23(7) provides for the right of an individual who has been unlawfully
deprived of his personal liberty to be compensated.

Article 23(9) provides for the right to an order of habeas corpus. This right
cannot be suspended by any law or otherwise and is in fact non-derogable.
The order of habeas corpus is a traditional remedy to have a detained person
produced in court and justification given for detention failure of which the court
must order the release of the individual.

Fundamental rights and freedoms of the individual are natural rights birthrights
given by the creator to every human person without exception.
Their basis is in the very nature and human dignity of every man and woman.
The idea of “Rights” is much related to concept of what is good, right, just and a
happy society. Every human being is entitled to his rights as legitimate valid
unjustified claims upon the society to which they belong.
Human rights are universal belonging to every locality, culture, religion, sex and
political opinion.

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