RULE OF LAW AND THE CONSTITUTION

The person known as the father of the rule of law is Professor All Dicey reflected in his book the Law of the Constitution which he wrote in 1885 and which was built on the basis and views of natural law scholars e.g. Montesquieu and his basic point was to attempt to remove government from the control of power hungry men and women and to instead impose a rule of principles or a rule of law where people were governed on well-known principles of law.. According to Dicey 3 main element make up the rule of law.

First, was the absolute supremacy and dominancy of regular law as opposed to the arbitrary exercise of individual power. The presumption underlying this view is that law possesses an objective quality and that it operates without fear or favour of any individual or authority. In this way, law is opposed to arbitrary power.

Secondly, was the element of equality that is the notion that all people are equal before the law. Natural differentiations such as colour, race, religion and sex should not lead to the differential treatment of people. Before the law all people are equal. Accompanying this is the principle of non-discrimination. The law should not be influenced by race, wealth or ethnicity.

Thirdly, the law must be the instrument of a just government of the rule of law that is a government not built on justice is a clear violation of the rule of law.

These basic principles have always formed the basis of the rule of law for the last 2 centuries and modifications have been made to suit changing circumstances. In 1959, the International Coalition for Jurists [ICJ] met in Geneva and formulated certain general principles for determining circumstances in which the rule of law can be said to be in existence.

i) The first principle according to the ICJ is the existence of a strong government and this is strong not in the sense of dictatorship but in sense of effectiveness and one in which the obedience of the people is given without necessarily forcing people.

ii) All government actions i.e. actions of the executive, legislative or Judiciary must be backed and conditioned by the law. This means that the law stands above all these. It also means that the government is a trustee or custodian of the law and political power and the role of government is to exercise power to the benefit of the public. The presumption here is that all laws which have been enacted by the Legislature and executive have been done so in the best interests of the people and should these 2 organs fail to meet the interests of the people, then the Judiciary should interfere to ameliorate the situation.

iii) Equality of law: There must be a consistency of application of the law to all people.

iv) The Judiciary must be independent, and, in this way, the Judiciary must not be subject of control of any other arm of government. Secondly it also means that the 2 other arms of government must respect and enforce decisions made by the judicial arm of the state.

How best can independence of the Judiciary be secured?

a) The nature and appointment of judges must be as transparent as possible in order to ensure that you have a process that is easily sustainable and defendable. The basis of appointment must be transparent and based on merit and capacity of the judges.

b) There should be an independent body that sieves potential appointees an

c) There must be security of tenure i.e. judges should not be easily removable and should have resources and facilitation necessary to their life and office.

v) The fifth principle of the ICJ is that when we talk about human rights, we mean both civil and political rights. Civil rights include freedom of association, speech, rights of an economic socio character e.g. right to food, shelter etc. Similarly, apart from simply declaring human rights and having them written in national Constitutions, there should also be an effective machinery of enforcement.

vi) There must be representative government. This means that people should have a way of participating in state affairs either directly or indirectly through their duly elected representatives and the power of election is accompanied by the power of removal. This means the government is based in the people.

vii) There must be a fair process of judicial adjudication and the principles of natural justice should be applied in a fair, consistent and impartial manner [Refer to Article 28 (3) of the 1995 Constitution].

viii) There must be a fair and effective system of administrative law (i.e. law that governs operations of administrative officers). This means that public officers should exercise their duties with diligence and effectiveness and with legal certainty of their actual extent.

ix) There must be respect for international law or the Law of Nations because all countries relate to one another and no one country lives in a vacuum or an island.

x) The state should promote and enhance the social and economic wellbeing of the people. There should not be adverse discrimination in society. The rich should not be allowed to grow unusually richer while the poor grow poorer. The rule of law has a social justice element written therein.

CONSTITUTIONAL LAW AND DEVELOPMENT IN AFRICA

In Africa, the main struggle since independence has been a struggle to create culture of Constitutionalism but there have been problems which mainly include:

a) Ethnicity (tribalism) i.e. politically favouring certain tribes.

b) Militarism i.e. the use of military force to resolve political disputes and conflicts.

c) Dictatorship evolving gradually into a personality cult and individualizing political power.

d) Political and legal illiteracy.

e) Customs or traditions.

f) Non-Separation of powers

g) Political intimidation

h) Human Rights violation.

WHAT IS A CONSTITUTION?

A Constitution is the basic law governing a society. It is the fundamental law and is regarded as essential in the governance and well-being of society. Virtually every state of the world has a Constitution, and all these are written except for countries like the United Kingdom (Britain).

A Constitution may take many different forms ie. It may depend on culture, religion and politics.

A Constitution is primarily concerned with the establishment of governmental power and how power is distributed between the various organs of government so that each organ should know the precise extent of its powers and that is important for its relations with other organs of government but most importantly for relations between those organs and the citizens to whom they owe these duties. That is why it is at times called a contract or compact between the governors and the governed. And in this context of immediate concern are individual Human Rights in society. It is the Grundnorm i.e. the very reason for the validity of other laws. It is the super law of the land from which all others stand to be tested.

Why do we call the Constitution fundamental?

i) All laws derive their authority from the Constitution and in this sense each law must be justified from the basis of the Constitution. If that law is inconsistent with the Constitution, then the law shall to the extent of that inconsistency be null and void. (Refer to article 2 (2) of the 1995 Constitution)

ii) It is concerned with the ultimate distribution of power. It defines how power is acquired in political, administrative and judicial offices, who may be elected, who may vote, what powers the holder of an office may enjoy and how he may vacate office.

iii) It spells out relationship between the individual and the government that is it shows rights and duties of individuals to the government and vice versa. In particular, it establishes the extent of the rights the individual is supposed to enjoy.

BASIC CONCERNS OF CONSTITUTIONS

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

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

3. The way legal and political disputes are to be settled that is the judicial system of government.

4. The Constitution is concerned with identifying fundamental rights and duties of individuals and how these should be enforced.

5. It is concerned with the issue of citizenship.

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

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

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

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

CHARACTERISTICS COMMON TO CONSTITUTIONS AROUND THE WORLD

1. Supremacy:

By supremacy is meant the notion that the Constitution stands over and above any other law, institution, authority or individual in the country as such all the above must obey the essential elements of the Constitution. (See articles 2 (1) and (2) and 20 (2) of the 1995 Constitution)

All previous Ugandan Constitutions have stated that the Constitution is supreme. Under the notion of supremacy, the responsibility of interpretation of the Constitution lies with the Judiciary.

Executive authority under the doctrine of supremacy must also be exercised under the dictates of the Constitution. Likewise, the power to make laws to the election of such authority should be done in line with the Constitution.

2. Perpetuity

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

3. Certainty

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

4. Providing for change

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

SOURCES OF CONSTITUTIONAL LAW

Where we have a written Constitution, the primary source is the Constitution itself but in addition, there are a variety of other sources of Constitutional law.

i) Ordinary Legislation or laws passed daily:

With unwritten Constitutions, this becomes the major source of Constitutional law. But even where there is a written Constitution, we must always refer to the law for example the law provides for the freedom of association or speech. In this way the organic or supplementary laws make part of the Constitutional law.

ii) Decisions of courts of law or the Judiciary particularly the doctrine of precedent which provides for continuity. Decisions of judges are important especially where decisions of Court conflict or where the Constitution is written in general terms.

iii) The source of authoritative writings ie the opinions of leading Constitutional law authorities. Here courts look for opinions of authorities or books on Constitutional law.

iv) Constitutional conventions/customs

There are simply Constitutional practices which have been accepted over a period of time in civilized nations of the world. Professor Dicey has described Constitutional conventions as follows “Rules or practices that are not necessarily enforceable by acts of law because they are based essentially on consent or acquiescence rather than enforcement. Nevertheless, they are binding on those to whom they apply. The most famous Constitutional convention was the pre-1945 convention in USA which stipulated that a US President could serve only 2 terms. President Franklin Roosevelt broke this convention.

CONVENTIONS

In Liversidge V Anderson (1942) AC 246, the main issue was imprisonment without trial of the appellant Mr. Liversidge on orders of the Home Secretary empowered by Regulations under the Defence Act when he had reasonable ground of believing that he had a hostile origin. Liversidge challenged the order on grounds that the Home Secretary failed to give him the reasons for detention and that a minimum of such reasons would have been given to him under the law. The majority of court held that under those regulations it was only necessary for the Home Secretary to have reasons for detention, but the Home Secretary was under no obligation to give those reasons to the appellant. Rather it was up to parliament to require the minister to explain these reasons if they wished in accordance with the convention of ministerial responsibility which convention stipulated that ministers of cabinet can be compelled by parliament to give reasons for any conduct carried out in execution of their ministerial duties.

Ref to also to the case of Carltona V Commissioners of Works

CLASSIFICATION OF CONVENTIONS

These are of 4 broad categories of conventions.

1. Conventions related to the executive

2. Conventions governing the cabinet

3. Legislative or parliamentary conventions

4. Conventions governing Judiciary.

Most of these conventions come from British constitutional law and many of them have been incorporated into the written Constitutional provisions which countries like Uganda have.

Examples of conventions:

1. Executive/Royal Prerogative

a) The first is that the Head of state should normally act on the advice of his or her ministers. This is the case where we have there is a honary head of state.

b) The second convention which applies in a multi-party system of government states that the Head of state should invite the leader of the party that enjoys majority support to form the government unless there are serious objections or reasons to such party taking the leadership of government.

c) The Head of state should always by convention give his or her assent to bills presented to him or her by parliament or legislature [Ref Article 91 of of Constitution].

2. Conventions governing cabinet/system of ministerial responsibility.

a) The cabinet must be unanimous in the advice given to the state. Once the cabinet has decided then every individual member of cabinet must abide by that decision in advising the president and the public. Furthermore, when in parliament, the cabinet must provide a united front even if an individual minister disagrees with the cabinet; he must take the common stand. Where he s unable to agree with the position taken, then he or she should resign. Individual members of Cabinet should therefore not disagree publicly in society. This is under the principle of collective responsibility.

b) The government especially in a multiparty system, must enjoy the support of the majority in the legislature or commons. If there is a vote of no confidence in the leader of the majority party or if the party by defections or by other means loses its majority in the House, then the government must be dissolved and a fresh general election be called in order to either renew the mandate or for the opposition to take over government.

c) Cabinet ministers must accept responsibility for the authorized conduct of officials in their ministry so if a minister delegates a person to do certain duties then the minister is responsible for his defaults and must account and protect their conduct. If there is a serious misconduct, the minister or officials responsible should resign.

3. Conventions of Parliament/Legislative

a) The first and most fundamental convention is that of parliamentary immunity which says that the member of the legislature shall not be subject to civil or criminal processes for any utterances or statements made in the exercise of their functions as members of government. That immunity covers members of parliament so long as what they are saying or doing is covered by the rules of parliament.

b) Elected members in the House take precedence over nominees or ex-officio members of government. These are non-elected members and must succumb to the will of the elected members.

c) The 3^rd convention that applies in multi-party system is that members of the opposition and minor parties must be given opportunity to be heard and that the Speaker of the House must be neutral as to the functioning of the House and he has the duty to give equal opportunity to members of the opposition to present their views.

d) Ordinary members of parliamentary or back benchers must have access to the front bench in the sense of being allowed to question ministers about various issues and the ministers must be able to satisfactorily answer the questions of the MPs.

4. Judicial Conventions

a) Proceedings that are ongoing should not be the subject of public debate in parliament or elsewhere as they may violate the principle of sub judice which is to the effect that a matter still in Court should not be subjected to public debate or discussion as this would damage or distort judicial proceedings.

b) Professional conduct of a Judge should not be criticized in parliament except on a substantive motion of impeachment ie for removal of a Judge.

CLASSIFICATION OF CONSTITUTIONS:

There are 2 broad categories of distinction ie the form of the Constitution itself or the type of governance which the Constitution creates. Regarding the form of the Constitution the most obvious is written and unwritten Constitutions.

Where a Constitution is written, then all the principles governing the allocation of power structures and functions of government are contained in one or more documents which together are described as the Constitution of that country. Where a Constitution is unwritten; most of the provisions of that Constitution are spread up amongst ordinary legislation, doctrines of common law, decided cases and constitutional conventions. Collectively, this collection of instruments could be called the Constitution. The most famous of this type is the Constitution of the United Kingdom.

Advantages of a written Constitution

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

ii) Usually the language, style or format will be uniform

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

The other classification of Constitutions is that between general and detailed specified Constitutions. A general Constitution is concerned with establishing a broad framework of government and it does this by laying down the main principles by which it will be guided and so it leaves room for interpretation, in contrast a detailed Constitution tries to cover every aspect of Constitutional government in a written instrument. Therefore, it will have detailed provisions as allocation of power, functions of government and so on.

The other classification is flexibility and rigidity. This one deals with the method of alteration. When we talk about the rigid Constitution, we mean that the methods for amendment are relatively more stringent. Rigid Constitutions are characterized by special procedures for amendment which often take a long time and involve in high majorities either at the legislature or through a national referendum. Flexible ones require a simpler process and have less majority requirements. The second feature of a rigid Constitution is the feature of entrenched clauses ie clauses beyond amendment which have been singled out for special protection. As opposed to rigid Constitution, flexible Constitutions are easy to amend. The best example is the United Kingdom Constitution because it needs a simple majority for amendment. In general countries have favoured rigid Constitution.

This is because:

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

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

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

Classification by type of Government

When we speak of government, we refer to the way in which the power and functions of state authority are distributed among different state organs of government.

There may always be various types of government but for the purpose of classification, we may talk about certain key indicators. First and foremost is the number of people participating in the top decision making of government, secondly, what type of ruler has the Constitution created ie a benevolent, autocratic or democratic ruler and thirdly, we look at the actual distribution of power between the organs of government and the different levels of the government.

Pursuant to the above factors, the first classification is dictatorial and democratic government. Generally speaking, a dictatorial government places absolute power in the hands of a single individual which individual generally rules without the will or consent of the people. People cannot involve themselves in determining their political destiny and other affairs. As such there are no elections or if they are there are usually no choice exercised. In such a government opposition to the incumbent is not tolerated and freedoms and rights of people are violated at the leaders will. On the other hand, a democratic government is characterised by the dispersal of power amongst a variety of different organs. There are also periodic, genuine and free and fair elections. There is in general respect for the rights and freedoms of individuals. Lastly the powers and functions of the different organs of government are separated from one another.

FEDERAL V UNITARY CONSTITUTIONS

The basic distinction between a federal and a unitary system of government relates to the fashion in which various powers and functions of government are vested in the central governing authority and the regions which make up the country. The reasons which necessitate the establishment of a federal system are numerous but among them include:

i) The question of culture: Many federal states become so because they have divergent and different ethnic groups and cherished characteristics which they consider require special protection to secure their identity and allowing for their autonomous co-existence. In such circumstances, it may be felt that a unitary system will destroy those distinctions. Some of countries using or following it are Canada, Switzerland and former Yugoslavia.

ii) The size or expanse of the country: Size becomes a consideration because it is obvious that it is quite impossible for the central government to have effective control over such a vast country. As such, for ease of governance of these autonomous regions, federalism is granted. (Examples of federal states include Russia, USA, Nigeria, and Canada.

iii) The third reason can be found in the historical circumstances surrounding a particular country. So, for example a country could have been formed out of several autonomous states which considered it useful to give up some of their autonomy in order to form part of the overall larger unit.

MAIN DISTINCTIONS OF A FEDERAL CONSTITUTION V UNITARY

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

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

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

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

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

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

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

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

UNITARY CONSTITUTIONS

The biggest distinction of a unitary Constitution is that all powers are centralized and the system of government in operation is a unified one whereby all powers and authorities are vested in a single central government, to the extent that the regions, district or local government have limited powers. These are powers that are conferred to them by the state and may be taken away by the central government without necessarily infringing the Constitution. The general characteristic therefore is concentration of power in the central government.

Unitary system Constitution tends to be more flexible and can easily be amended. Most African states employ unitary Constitutions. The idea of federalism was an idea which was rejected by most African states at independence and the arguments being made were that national unity was more appealing. In this case the idea of national identity and a national language were crucial.

In between the federal and unitary system of government we have the idea of decentralization which is especially an idea that has gained prominence in the case of Uganda.

REPUBLICAN VERSUS MONARCHICAL CONSTITUTION

The distinction between a republican and a monarchical government is mainly in the manner in which the Head of state is elected. A monarchical system is a system of government where the head of state comes into power by right of his or her birth. He or she derives his authority or power by virtue of a royal lineage.

With respect to the kind of powers that are exercised a monarch can be either absolute or Constitutional ie a figurehead or an actual ruler. A Constitutional monarch will have his/her powers spelt out in the Constitution and those powers are largely ceremonial and executive powers are usually left to elected rulers. This is the more common type of monarchies that we have around. An absolute monarch in contrast exercises power absolutely without any necessary reference to any other instruments or institutions of state.

Republican Constitutions are such that the leaders of a country are elected by the people and periodically changed by the people. It does not recognize distinctions related to birth. The emphasis is based on equality of all people and their eligibility to hold responsibility at all level.

THE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

i) Fundamental rights inherent in all citizens and are not granted by the state but are inherent in citizens by the very fact of their birth (Article 20(1))

It was espoused by Lugakingira J in Rev. Christopher Mtikila V AG of Tanzania Civil Case No.5 of 1993 that ‘fundamental rights are not gifts from the state. They inhere in a person by reason of his birth and therefore prior to the state and the law’.

This means that these rights are merely re-stated, but the Constitution does not purport to be creating them. They to that extent must be looked at in a different light from other legal rights. It is therefore important that the state should in no way always require permission from its organs and agencies like the Uganda Police for the citizens to enjoy these rights.

ii) The Constitution must be interpreted as a whole

It was settled by the Supreme Court of the US in South Dakota V North Carolina 192 US 268 (1940) 448 that no single provision of the Constitution is to be segregated from others and to be considered alone but that all provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the greater purpose of the instrument’.

Therefore, in law the Constitution is a wholesome legal document and all provisions must be regarded as constituting it. The normal logic in this canon is that in order to ascertain the true meaning and intention of the legislators, all relevant provisions must be considered. It is thus dangerous to consider any particular human right provision in isolation of all others and any court which tries to do this is bound to get an inconsistent conclusion.

iii) The Preamble and Directive Principles offer some guidance in interpretation

The Preamble and the National Objectives and Directives Principles of State Policy must when necessary be considered to supply the intention of the framers. But critically, this must be done without violating the meaning of the words used. The simple rationale to this canon is that the rights granted by the Constitution do not exist in a vacuum and are not an end in themselves. They are granted upon a given background and it would be lethal for any court to interpret the provisions in total segregation of the preamble and the Directive principles. In Uganda the basic importance of this was stated by Egonda-Ntende J in Tinyefuza V AG Const. Petition No.1 of 1997 wherein he stated that:

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

This is further given life by article 126 which recognizes that judicial power is derived from the people and that it must be exercised by the courts in accordance with the Constitution and ‘in conformity with the law and with values, norms and aspirations of the people”.

It was held by Kanyeihamba JSC in AG V Major Gen. David Tinyefuza Const. Appeal No.1 of 1997 that ‘it is therefore important to know and appreciate the historical and contextual background to the Uganda Constitution and the manner in which it carefully demarcated responsibilities and functions amongst the various organs and institutions of state before applying its provisions to given sets of facts and circumstances”. Oder JSC also shared a similar view and added that the preamble and the directives must always be borne in mind and noted that the preamble refers to the struggle of the people of Uganda against the forces of tyranny, oppression and exploitation. The same was done by the Supreme Court of South Africa in De Clerk & V Du Plessis & ors (1994) 6 BLR 124.

iv) Where words are clear and unambiguous, they must be given their primary, plain, ordinary and natural meaning.

Such language must be given its common and ordinary sense and natural sense means that natural sense which they bore before the Constitution came into force.

In the case of R v El Mann (1969) EA 357 court cited with approval Craies on Statute Law (6^th Ed) 66 wherein the learned author states that’ the cardinal rule for construction of Acts of Parliament is that they should be construed according to the situation expressed in the Acts themselves. The tribunal that has to construe an act of a legislature or in deed any other document has to determine the intention as expressed by the words used…If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. Where the language of the Act is clear and explicit, we must give effect to it, whatever may be the consequences for in that case the words of the statute speak the intention of the legislature…we are satisfied that a Constitution is to be construed in the same way as any other legislative enactment and that is when the words used are precise and unambiguous they are to be construed in their ordinary and actual sense. It is only when there is some imprecision or ambiguity in the language that any question arises whether a liberal or restricted interpretation should be put on the words’.

v) Where the language of the Constitution is imprecise or ambiguous, then a liberal, flexible, generous and purposeful interpretation must be given to cure the ambiguity.

The rationale for this is that the Constitution is not an ordinary statute capable of amendment as and when the legislators chose.

This was best illustrated in Unity Dow V AG of Botswana (1992) LRC 623 where in Amissah J.P said that:

‘The makers of the Constitution do not intend that it be amended as often as other legislation, indeed it is not unusual for provisions of the Constitution to be amendable only by special procedures, imposing more difficult terms of heavier majorities of the legislature. By nature, and definition even when using ordinary prescription of statutory construction, it is impossible to consider a Constitution of this nature on the same footing passed by a legislature which is itself established by the Constitution. The object it desires to achieve evolves with the evolving development and aspirations of its people’.

In Salvatori Abuki V AG Const. Petition No.2 of 1997, Okello J (as he then was) stated that ‘If the purpose of the statute infringes a right guaranteed by the Constitution, that statute is declared unconstitutional. Where the purpose of the statute is purportedly within the Constitution, the court would go further to examine its effect. If the effect violates a right guaranteed by the Constitution, that statute is also declared unconstitutional’.

In R V Big Drug Mart Ltd (1985) DLR (4^th) 321, the Supreme court of Canada stated that ‘the interpretation should be a generous one rather than a legalistic one aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the charter’s protection’. See also AG V Momodou Jobe (1984) AC 689.

Connected to this cannon is the meaningful and effective rule. Under this, courts may expand the meaning of a phrase or term to accord it with the legislative effect. In Tellis & Ors V Bombay Municipal Council (1987) LRC (Const.) 351, the petitioners argued that if they were evicted from their slum and pavement dwellings, that would violate their right to life under article 21 of the Indian Constitution. They sought to argue that the right to life included the right to livelihood. The Supreme Court accepted their argument and added that ‘if the sweep of the right to life conferred by article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away for example by the imposition and execution of the death penalty, except according to law. That is but one facet of the right to life. An equally important facet of that right is the right to livelihood. If the right to livelihood is not treated as part of the Constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness, but it would make life impossible to live’.

This case and passage was quoted with approval and agreed to apply ‘with equal force to the right to life as protected under the Uganda Constitution’. This was in Salvatori Abuki V AG. In that case, the petitioners were banished from their homes for 10 years after serving a prison sentence for contravention of the Witchcraft Act. The Constitutional court struck down the Act as being unconstitutional and inconsistent with the Constitution which guaranteed citizens from cruel, inhuman or degrading treatment, the right not to be compulsorily deprived of property and the right to life. The court took judicial notice of the fact that most people in Uganda live in rural areas and survive on the land. Court considered that the banishment provisions would have the effect of excluding the banished person from shelter, food by denying him access to land and that such a person is rendered a destitute upon leaving prison.

vi) The Constitution must be interpreted as a living document

This cannon enjoins the courts to interpret the Constitution having in mind present day circumstances. It also means that it is meant to cater for both the present generation and those unborn. In Unity Dow V AG (supra) it was remarked that, ‘the Constitution is the supreme law of the land and it is meant to serve not only this generation but also generations yet unborn. It cannot be allowed to be a lifeless museum piece. On the other hand, the courts must breathe life into it from time to time as occasion may arise to ensure the healthy growth of the state through it. We must not shy away from the basic fact that while a particular construction of a Constitutional provision may be able to meet the designs of the society of a certain age…it is the primary duty of the judges to make the Constitution grow and develop in order to meet the just demands and aspiration of an ever developing society which is part of the wider and larger human society governed by some acceptable concepts of human dignity’.

vii) The Harmonisation of conflict principle

This means that where two constructions are possible, and one is very restrictive of the guaranteed rights and the other permissive then the latter is to be preferred of the two. In Mtikila V AG of Tanzania Civil Case No.5 of 1993, the court was encountered with conflicting Constitutional provisions. The Tanzanian Constitution granted every citizen the right to participate in the government of the country and the right not to be compelled to belong to or subscribe to a particular political party. However, an amendment was passed which barred any citizen from running for any political office unless they were members of and sponsored by one of the recognized parties. In holding that these two provisions read together could not bar independent candidates from standing held that ‘when a provision of the Constitution enacting a fundamental right appears to conflict with another provision of the Constitution…the principle of harmonization has to be called in aid. The principle holds that the entire Constitution must be read as an integrated whole and no one provision destroying the other but each sustaining the other...if the balancing act should succeed, the court is enjoined to give effect to all the contending provisions. Otherwise the court is enjoined to incline to the realization of fundamental rights and may for that purpose disregard even the clear words of a provision if their application would result in gross injustice…These propositions rest above all on the realization that it is the fundamental rights which are fundamental and not the restrictions”.

viii) Narrow construction to be preferred in case of derogation from a guaranteed right.

It is not in doubt that save for the rights mentioned in article 44 which are stated to be non- derogable, the rest can be limited. But the power to do so is not at large and is not to be arbitrarily exercised by courts. Indeed, under article 43, it is stated that in the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest. Public interest is in turn stated not to permit among others any limitation of the enjoyment of those rights beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in this Constitution.

This ordinarily means that all that a victim of infringement has to do is to plead that his right has been violated unreasonably. Once he does this, then the burden shifts to the alleged infringer to prove that this was in the circumstances reasonable and justified. In Charles Onyango Obbo & Andrew Mwenda Const. Appeal No.2 of 2002, the two petitioners who were journalists in the Monitor newspaper were charged on two counts of publication of false news contrary to section 50 of the Penal Code. They had run a story which among other had the headline ‘Kabila paid Uganda in Gold, says report’. The particulars of offence had quoted a paragraph of the story that “President Laurent Kabila of the newly named Democratic Republic of the Congo (formerly Zaire) has given a large consignment of gold to the Government of Uganda as payment for services rendered by the latter during the struggle against the former military dictator, the late Mobutu Sese Seko”. The petitioners claimed that section 50 was inconsistent with articles 29 (1) (a) and (b), 40 (2) and 43 (2) (c) of the Constitution.

Justice Mulenga espoused the fact that the protection of guaranteed rights is the primary objective of the Constitution and the limitation of their enjoyment is an exception to their protection and is therefore a secondary objective. Although the Constitution provides for both, it is obvious that the primary objective must be dominant. It can be overridden only in the exceptional circumstances that give rise to that secondary objective. He stated on authority that the criteria to be satisfied includes;

a) the legislative objective which the limitation is designed to promote must be sufficiently important to warrant overriding a fundamental right

b) the measures designed to meet the objectives must be rationally connected to it and not arbitrary, unfair or based on irrational considerations.

c) The means used to impair the right or freedom must be no more than necessary to accomplish the objective.

He was satisfied that Section of the Penal Code Act making publication of false news a criminal offence did not satisfy that test. In his view there were two interests to be balanced here. The first was the freedom and self-fulfillment from the exercise of the freedom of expression or from receiving information and ideas from those who impart it. The second is that the country as a democratic society derives the benefit of promoting democratic governance. He added however that although no doubt there was a non-quantifiable benefit of protecting the public, the Section to pass the test must have achieved the purpose of protecting them against real or actual danger and not merely speculative or conjectural danger of alarm or disturbance of the peace. He concluded that the second benefit was so much outweighed that it could not in any sense justify overriding the first interest of access to information.

He in showing that Section 50 used a measure which was not proportional at all to its apparent objective, he noted that the section in fact prevented the publication of expressions likely to cause public fear , alarm or disturbance of peace even if it does not cause any such mischief. That, accordingly, to criminalize the publication in this way was akin to killing a mosquito with a sledgehammer. He criticized an analogy that Berko JA had given in the court below that the essence of criminal law is that freedom of expression and speech should not be invoked to protect a person ‘who falsely shouts fire, fire in a theatre and causing panic’. In his view, such a ‘fire alarm’ had to in fact cause panic and that panic had to prejudice the public interest. He also adverted to the fact that it would require with some sense of divine pre-science a person to measure what impact such a statement would have on the public. It was enough if it did not in fact cause any panic but was likely to cause it. This was an unacceptable provision. He also noted the unusual burden of proof of the section in that the prosecution did not have to prove guilty knowledge but instead to avoid liability one had to take provable measures to verify the accuracy of every statement, rumour or report before publishing it. He also considered the impossibility of calculating the public reaction that a certain publication will cause beforehand. He concluded that such a measure of restriction is not proportional to the mischief intended to be cured and could thus not be justifiable in a free and democratic society. He, as well as court held that Section 50 of the Penal Code Act was inconsistent with article 29 (1) (a) and thus void. Court concluded that where a law places a limitation on a guaranteed right, it can only be valid if it passes the test laid down by Article 43

This limitation in article 43 (2) (c), cannot sustain the argument that what is acceptable and justifiable varies from society to society. Justice Mulenga in jettisoning this argument by the AG in this case stated that clearly the article presupposes the existence of universal democratic principles to which every society adheres. While there may be variations in application, the democratic values and principles remain the same. Legislation which seeks to limit rights in Uganda is not valid under the Constitution unless it is in accord with those universal principles.

ix) Where the rules of practice are rigidly applied will defeat the process of giving effect to guaranteed rights, they must be reasonably relaxed

This is perhaps best supported by article 126 (2) (e) which requires courts of law to dispense substantive justice without any undue regard to technicalities. Accordingly, it is the merits or substance of the petition and not the procedural technicalities that count.

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

It is surprising however that hardly a year after this very succinct statement of the law, the same court appeared to have abandoned this activism. In Rwanyarare & Anor. V AG CP No.11 of 1997 it said that, ‘we do not see that article 126 (2) (e) has done away with the requirement for litigants to comply with the Rules of procedure in litigations. The article merely gives Constitutional force to the well-known and long-established principle at common law that rules of procedure act as hand maidens of justice’.

In M/s Kasirye, Byaruhanga & Company Advocates V UDB Civil Appeal No.2 of 1997, the Court of Appeal noted after reading article 126 (2) (e) that ‘we have underlined the words ‘subject to the law’. This means that clause (2) is no licence for ignoring existing law…a litigant who relies on the provisions of article 126 (2) must satisfy the court that in the circumstances of the particular case before the court it was not desirable to pay un due regard to a relevant technicality. Article 126 (2) (e) is not a magic wand in the hands of defaulting litigants.

Whereas the present interpretation of article 126 (2) (e) remains shrouded by uncertainty, it appears that courts of law do insist on meeting procedural requirements and require a party to plead the article after proving that he has not omitted procedural requirements. However, realistically speaking, it certainly cannot be right, at least when fundamental human rights are in issue, that courts of law should consider their hands tied and refuse to hear the merits of a Constitutional petition merely because some procedural lapse exists even when they can clearly ascertain the merits of the dispute before them. This would be a very unfortunate trend by our courts, yet it appears to be the favoured one.

x) International Human Rights Conventions and Treaties may be used interpretation.

This cannon was well summarized in Unity Dow V AG (supra) wherein the court remarked that although it is common view that conventions do not confer rights on individuals within the state until Parliament has legislated and incorporated them into local law, those conventions may be referred to as an aid to construction of the Constitution and that it would be wrong for the courts to interpret its legislation in a manner which conflicts with international obligations.

The rationale is that whether ratified or not, these conventions contain universally recognized human rights to which no civilized nation can derogate from. Even when they are yet to be ratified, it is the clear duty of court to speed up this process by using them in interpretation of the Constitution.

xi) The Sui Generis Rule

The word ‘sui generis’ means in a class of its own. The Constitution stands on a very different footing from other legislation even though in fact the principles which govern other legislation for the most part (but not always) also govern the interpretation of the Constitution. It is the only reason why all other laws are subjected to it and why they are declared null and void to the extent that they are inconsistent with it.

It is also the reason why the language used is much broader and encompassing than that used by all other statutes. It is intended to cover rights and freedoms for all people without discrimination and because it is made for present generations and those unborn.

THE DOCTRINE OF SEPARATION OF POWERS

This doctrine basically says that there must necessarily be a differentiation between the functions of government as well as the separation, conceptual and factional between the bodies that exercise power.

According to Montesquieu in his book The Spirit of the Laws [1748], there must be 3 separate organs of govt. There must be the organ that makes law i.e. the legislature, there must be the organ that executes Law ie Executive and lastly there must be a body to interpret the Law and to mediate disputes over the Law ie. Judiciary.

To Montesquieu therefore, separation of powers meant 3 basic things.

i) Each organ of the state should be operated by different people ie it should not be one individual running all the 3 organs so that at no time should a Judge make the Law nor should he be involved in an executive function.

ii) That each of the state organs should be independent of one another ie there should be an absence of control, influence or direction by one organ of state over another ie there should be autonomous operation. No one organ of state should control activities of the other.

iii) No one organ of the state should take over the powers of the other.

The doctrine was exemplified in the case of Major General David Tinyefuza V Ag Const. App. No.1 Of 1997 wherein Kanyeihamba JSC noted that ‘the principle of non-interference by the Judiciary in legislative and executive matters should prevail save for exceptional circumstances involving the deprivation of the liberty of a citizen. The reluctance of the courts to enter into the arena reserved by the Constitution for the other arms of government reaches its zenith when it comes to the exercise and control of powers relating to the armed forces, their structure, organization, deployment and operations. The accepted principle is that courts will not substitute their own views of what is public interest in these matters especially when the other coordinate powers of government are acting within the authority granted to them by the Constitution and the law. As military matters are within the exclusive jurisdiction of both the Executive and Parliament, it is not for the courts to consider whether the discretion of the executive has been properly, if at all. It is Parliament which has the authority to bring the executive to account in these military matters. In the English case of Chandler V DPP (1964) AC 763, Lord Devlin underscored this point when at p. 810 he said “the court will not review the proper exercise of discretionary power but they will only intervene to correct excess or abuse”…The Constitution provides that the Constitutional platform is to be shared between the three institutional organs of government whose functions and powers, I have already described. The Uganda Constitution recognized these organs as the parliament, the executive and the Judiciary. It was not by accident either that it created, described and empowered them in that order of enumeration. Each of them has its own field of operation with different characteristics and exclusivity and meant by the Constitution to exercise its powers independently. The doctrine of separation of powers demands and ought to require that unless there is the clearest of cases calling for intervention for the purposes of determining Constitutionality and legality of action or the protection of the liberty of the individual which is is presently denied or imminently threatened, the courts must refrain from entering arenas not assigned to them either by the Constitution or laws of Uganda. It cannot be overemphasized that it is necessary in a democracy that courts refrain from entering into areas of disputes best suited for resolution by other government agents. The courts should only intervene when those agents have exceeded their powers or acted unjustly causing injury thereby…the makers of the 1995 Constitution took away a lot of the powers which had hitherto been exercised by the executive and assigned them either to parliament or the Judiciary or the local governments. To whittle away the powers which are left in the executive by judicial engineering would in my opinion weaken the Executive further and be contrary to good and balanced governance in Uganda’.

All Constitutions in the world pay homage to this basic doctrine of separation of powers. And they tend also to separate the personalities. But even as they do so, there are limits at which you must separate power so the pure doctrine of separation of power no longer works like Montesquieu envisaged and instead scholars have chosen to use the phrase checks and balances as a way of dealing with the need to ensure that …. Is some separation and at the same time recognizing that there is an overlap of these organs of state. Therefore, the doctrine of checks and balances is taken to mean that the organs of the state exist in a situation of mutual independence and interdependence so that if there is overstepping of the like by one of these organs, there is an ability to check that excessive action.

Through the doctrine of checks and balances, an effort is made to ensure that no one organ becomes more powerful than the others. The organs of government are like is 3 stones under a pot and each of them functions to ensure that the foods in the pot is effectively cooked and also that the pot does not fall over. So, this doctrine of checks and balances is designed also to promote efficiency and for the individuals to operate these organs and develop an expertise.

In the final analysis, a system which has checks and balances which may not function very effectively is far better than a situation in which you have excessive powers vested in a single organ which is uncontrolled.

Qn: Analyse how successful the 1995 Constitution has been in achieving the doctrine of separation of powers. Has practice been different? See the Onapito Bill that suffered a natural death.

THE PREROGATIVE OF THE PRESIDENT

The powers of the President in colonial times were absolute. These powers derived from the absolutism of the Queen. Accordingly, it was in the power of the Crown to dismiss and disappoint as it pleased without qualification. It appears that on the grant of independence, this position was retained, and the President had similar powers. The Prerogative of the President and its absolute nature was tested in the case of Opoloto V Ag (1969) EA 631. The appellant had been dismissed from the Uganda Army in which he had been serving as Brigadier and Chief of the Defence Staff. He was as well detained under the Emergency Regulations. He sought a declaration that his discharge was invalid and that he was still a member of the Armed Forces.

Held (Sir Charles Newbold P)

The prerogative powers vested in the British crown before independence including the power to dismiss at will officers in its service are now vested in the President and to take away this established prerogative right by statute required clear words.

For a long time therefore, it remained the position that it was in the President’s power to appoint and disappoint as he deemed fit. This position however did not survive the 1995 Constitution and it was soon to be tested in courts of law. Judicial pronouncements cast great doubt as to the validity.

It was castigated and abandoned in Major General David Tinyefuza V Ag Const. App. No.1 Of 199 where in Kanyeihamba JSC noted that, ‘In England, where the notion of crown prerogative has from time to time immemorial been accepted, English courts have from time to time held that the royal prerogative cannot be used to deprive a citizen of his or her vested interest without compensation…The case of Opoloto V Uganda which concerned the exercise of a Presidential prerogative to remove an officer from his commission was also cited. 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 opportunity to be heard. Therefore the Opoloto’s case must be confined to its four corners by this court…If the President who is commander in chief of the Uganda Defence Forces had wanted to remove the petitioner from those rights and responsibilities, he should have done so expressly and for one of the causes spelt out in the relevant statute and regulations. Furthermore, the President has no constitutional or legal power to deprive the petitioner of his vested rights such as his entitlement to pension and other rights which he earned as a member of the Uganda People’s Defence Forces...it should be the law to affect the rights of the petitioner and not the prerogative of the President’.

Mukasa-Kikonyogo JSC on her part stated that, ‘I would be declined to accept the submission of Mr. Lule basing himself on the case of Opoloto V Attorney General (1969) EA 631 that the President had a prerogative right to remove the respondent. To hold so in my view…would be inconsistent with the rights of the individual member of the Army. It would give the president powers to dismiss arbitrarily as apparently it happened in Opoloto’s case (supra). As it was submitted by the appellant, in exercise of his powers, the President should comply with the law but not contrary to it’.

(Wambuzi CJ)

‘It is my considered view that in the case before us, the President was bound to act in accordance with the law whether or not he was exercising prerogative powers’.

It would appear that, absolutism of the President was done away with by the 1995 Constitution. Under article 20 (2) of the Constitution, it is stipulated that the rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of government and by all persons (i.e. including the President). Even in the prerogative of mercy established under article 121 to be exercised by the President, he can only exercise it with the advice of an Advisory Committee on the Prerogative of Mercy which consists the Attorney General and 6 prominent citizens of Uganda appointed by the President. (Does the fact of being appointed by the President affect their independence of mind

THE JUDICIARY

The Judiciary is often seen as the 3^rd arm of government. In regard to the principle of separation of powers, the concern is the judicial independence of the courts which in terms of the idea of checks and balances, the Courts are considered to have the duty to uphold and protect the Constitution and to be the chief arbitrators over all disputes in the country. With specific regards to disputes between individuals and the other two organs of government ie. the executive and legislative the courts are seen as a check on the arbitrary and excessive use of powers.

THE PHENOMENON OF JUDICIAL POWER JURISDICTION OF COURTS

The exercise of judicial power is provided for in Chapter 8 of the 1995 Constitution ie articles 126-151. The Phenomenon of judicial power essentially embraces a number of elements.

i) The structure and hierarchy of courts and their jurisdictional competence [articles 129, 139, 137].

ii) Guiding principles in the exercise of judicial power [article 126]

iii) Participation of peoples in the administration of justice [article 127].

iv) Independence of the Judiciary in the exercise of judicial power [article 128].

THE STRUCTURE AND HIERARCHY OF COURTS AND THEIR JURISDICTIONAL COMPETENCE.

The structure of the Judiciary is governed by article 129 which sets out the Courts of judicature which shall exercise judicial power in Uganda, and these include the Supreme Court described in articles 130-132, the Court of Appeal provided for under articles 134 and 136. The Court of appeal is also constituted as the Constitutional Court under article 137. The High Court of Uganda which is provided for under article 138 to 139 and other subordinate courts as established by parliament which include the Qadhi Court.

Under article 129(3), parliament is to make provision for the jurisdiction and procedures of the Courts and as a result of this, the Judicature Act 1996 was enacted which essentially provides for the various courts of judicature, the applicable law for the courts as well as prerogative orders that may be issued including habeas corpus, mandamus, certiorari.

The jurisdictional competence of the Courts is provided for by the Constitution although in the case of the subordinate courts such as the magistrate courts, their jurisdictional competence will be found in the MCA (as amended).

The Supreme Court and the Court of Appeal as such, are essentially appellate courts although the Supreme Court is the final court of appeal by virtue of article 132(1) yet on the other hand it acts as a court of original jurisdiction with regards to petitions on presidential elections by virtue of article 104.

The Court of Appeal while acting as the Constitutional Court is by virtue of article 137 enjoined with determining issues of the interpretation of the Constitution. The jurisdiction of the Constitutional competence is strictly limited to interpretation of the Constitution.

Refer to the following cases:

- Ismail Serugo V KCC Const. Appeal 2/1998.

- Rwanyarare & Anor Vs AG Const. Petition 11/1997.

- U’da journalists safety committee V AG const. Petition 6/97 and 7/97.

- Abuki V AG Const. Case 2/97.

- In the matter of Sheikh Abdul Sentamu Const. Reference 7/98.

- Dr. James Rwanyarare & Anor V AG const. Petition 11/1997

The High Court possesses unlimited original jurisdiction in all matters as provided under article 139(1). In Myers & Anor V Akira Ranch Ltd (No.2) [1972] Ea 347. In this case, the argument was presented that section 64 of the civil procedure Act allowing Court to summarily award compensation not exceeding 2000 Shs would be in derogation of the unlimited jurisdiction of the High Court and so was unconstitutional. The Judge held that the fact that the High Court is a court of unlimited jurisdiction does not mean that the legislature cannot limit the relief to which a person is entitled or even deprive him of relief altogether. In conclusion the judge noted that section 64 of the civil procedure Act does not in any sense suggest that it applied only to subordinate courts and in the opinion of the judge, it also applied equally to the High court.

GUIDING PRINCIPLES IN THE EXERCISE OF JUDICIAL POWER

These are contained in article 126 which starts off by stipulating that judicial power is derived from the people and exercise of that judicial power by the conformity with the law and the people and by conformity with the law and the values and aspirations of the people (article 126(1).

In terms of article 126 there are 5 guiding and motivating principles in the exercise of judicial powers by the courts.

a) The dispensation of justice to all persons equally irrespective of social or economic status. This is expounded by article 21(1) which makes all people equal under the law [Refer to 126(2)(a)].

b) The dispensation of justice shall be undertaken without undue delay [Read 126(b)]. This principle is corroborated by article 28(1) that gives a right to a fair hearing.

c) Victims of wrongs (civil and criminal) shall be awarded adequate compensation.

(Article 23(7), 26(2), 50(1), 126(2)(c))

d) The promotion of reconciliation between parties (article 126(2) (d)).

e) The dispensation and administering of substantive justice without undue regard to technicalities. (Article 126 (2) (e))

NB. All the above principles are subject to the law.

ARTICLE 137

The jurisdiction of the Court of Appeal while sitting as the Constitutional court is by virtue of article 137 taken to concern with questions on interpretation of the Constitution. The jurisdiction of the Constitutional Court and to an extent the Supreme Court since 1995 has tended towards a restrictive interpretation of the jurisdiction of the Constitutional Court such that where a petition submitted to the Constitutional Court has not involved interpretation of the Constitution, it has said to be outside the jurisdiction of the Constitutional Court and therefore incompetent..

The first instance where the issue of the jurisdiction of the Constitutional court was raised was in the case of Attorney General V Tinyefuza Const. Appeal 1/97 before the Supreme Court. On appeal, the then Chief Justice Wambuzi posed the issue of whether the Constitutional Court should have had jurisdiction over Tinyefuza’s petition in the first place. In answering this issue, the Chief Justice considered what the cause of action is Tinyefuza’s petition was and determined that this was a purported violation of right to freedom from forced labour under article 25(2) and was brought under article 50(1) Wambuzi CJ concluded that the petition was one essentially for the enforcement of human rights and not the interpretation of the Constitution and was in his view not within the jurisdictional competence of the Constitutional Court.

Kanyeihamba JSC on his part referred to the marginal note to article 137 and concluded that jurisdiction of the Constitutional Courts is strictly limited to the interpretation of the Constitution and therefore does not extend to enforcement of human rights.

The Late Oder JSC on his part employed the contextual interpretation in determining the jurisdictional competence of the Constitutional Court. Contextual interpretation requires the interpretation of legislation or provisions of legislation in a context and therefore that provisions, should not be looked at in isolation. Oder JSC looks at:

a) The provision on the right to petition under article 50(1). It states that anybody who is aggrieved as to his rights may petition to a “Competent court”.

b) Provision on jurisdiction of the Constitutional Court ie article 137(1) and 3(a) & (b).

c) Procedural laws for instituting petitions for human rights violations. He comes with 2 laws.

d) Constitutional Court (Petition for declaration under art 137) Direction LN4/1996.

e) Fundamental Right & Freedoms (Enforcement Procedure) Rules SI 26/1992.

In the final analysis, Oder JSC came to the considered opinion that petitions for the enforcement of Human rights under the Chapter 4 and brought under article 50(1) may of necessity involve questions of interpretation of the Constitution. This view of Oder JSC was subsequently upheld in particular by Justice Mulenga and CJ Wambuzi in the case of Ismail Serugo V Kcc Civil Appeal 198(Sc). Justice Mulenga In Particular Stressed that the jurisdiction of the Constitution Court is primarily that of the interpretation of the Constitution, but it also extends to petitions for the enforcement of human rights which entail the interpretation of the Constitution.

The courts however were more active in dismissing those petitions which only concerned enforcement of human rights under article 50 and did not at the same time involve issues requiring constitutional interpretation. These included:

Rwanyarare & Anor V Ag Cp 11/1997.

In this case, the petitioners challenged the constitutionality of several provisions of the Constitution including article 269 as being in violation of their freedom of assembly and association under article 29(1)(d) and (e). The Constitutional court considered the petition as brought under article 50(1) as essentially concerning with the enforcement of human rights and dismissed it.

Uganda Journalist Safety Committee & Anor V Ag Cp 6/1997.

In this case the petitioners challenged the Constitutionality of sections 42 and 60 of the Penal Code on sedition and publishing false news as being in violation of their rights to freedom of speech and expression under article 29(1)(a). The petition was also dismissed.

Ujsc & 2 Others V Ag Cp 7/1997.

The petitioners in this case were challenging the Constitutionality of the Press and Journalists Statute 1995 as being in violation of their rights to freedom of the press under article 29(1)(a) and right to conduct a lawful profession under article 40(2). This petition was also thrown out.

Onyango Obbo& Anor V Ag Cp 15/97. The Petitioners were challenging provisions as sedition and publishing false news under the PC as violating their right under article 29(1)(a) and in any event these penal provisions were seen as a restriction to their rights under article 43, they were not justifiable in a free and democratic society.

THE PILLARS

a) Article 128 (2) is to the effect that no person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions and under article 128 (3) all organs and agencies of the State shall accord to the courts such assistance as may be required to ensure the effectiveness of the courts. In MASALU MUSENE, Mpagi Bahigeine JA noted that the maintenance of judicial independence as enshrined in article 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 independence.

TwinomujunI JA on his part reiterated that for the Judiciary to be effective, it needs assistance from all but especially from the Executive and Legislature. He thus regretted the so-called chastisement of the Judiciary apparently for no other reason other than it doing a job vested in it by the Constitution. He cited examples where after passing a judgment, it is followed by threats to ‘fix’’ or ‘sort out’ the biased judges or to investigate corrupt judges. Clearly these two provisions form the bedrock of the doctrine.

However, the assistance must not only be necessary, but it must not be such that it instead violates the independence of the Judiciary. In the Uganda Law Society V Ag Constitutional Petition No. 18 Of 2005, the doctrine was held to have been blatantly violated. The background to it was that Rt. Colonel Kiiza Besigye, a leader of the political party known as the FDC and 22 others (the accused) were jointly charged with treason and misprision of treason under the Penal Code Act. The indictment was then read to them. The 1^st accused, Dr. Besigye was separately charged with rape. They were later committed to the High Court for trial. On 16, November 2005, the accused were taken to the High Court for a bail application before Lugayizi J. 14 of the accused satisfied the conditions for grant of bail and were granted the same. However, because of certain acts of the security personnel at the High Court premises, the bail papers could not be processed. The security men were dressed in dark clothes and heavily armed. They entered some of the Court offices and interrupted the court’s normal duties. The accused in consequence thereof had to be taken back to prison. A petition was accordingly brought challenging these acts of the army. In his judgment Engwau JA noted that ‘under article 128 (3) of the Constitution, all organs and agencies of the state are required to accord to the courts such assistance as may be required to ensure the effectiveness of the courts. What those military personnel did no that day was not an assistance envisaged in article 128 (3) of the Constitution’

b) Under article 128 (4), 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. This protection is further buttressed in the Judicature Act Section 46 (1) which is to the effect that a judge, commission or other person acting judicially shall not be liable to be sued in any civil court for ant act done or ordered to be done by that person in the discharge of his or her judicial functions whether or not within the limits of his or its jurisdiction.

The essence of this is that judges must not decide cases with a premeditated fear of civil or criminal actions against them. In Evans V Gore, the US Supreme Court cited John Marshall, a famous 19^th Century lawyer as intimating that it is to the last degree important that a judicial officer should be rendered perfectly and completely independent with nothing to influence or control him but God and his conscience. To him one of the worst things that can exist is an ignorant, corrupt and dependent judiciary.

c) Article 128 (5) It is to the effect that the administrative expenses of the Judiciary including all salaries, allowance, gratuities and pensions payable to persons serving in the judiciary shall be charged on the Consolidated Fund and under Article 128 (6), the Judiciary shall be self-accounting and may deal with the Ministry responsible for Finance in relation to its finances. These two provisions are meant to ensure that there is a reasonable degree of self-accounting and control over judicial funds such that the welfare of judicial officers is not placed at the whims and mercy of the Executive or Legislature. It is not in doubt that you cannot separate financial matters from the broad question of judicial independence.

d) Article 128 (7) is to the effect that the salary, allowances, privileges and retirement benefits and other conditions of service of a judicial officer or other person exercising judicial power shall not be varied to his or her disadvantage. In MASALU MUSENE’s case, the Petition went to the core of this requirement. The 4 Petitioners all of whom are judicial officers sought a declaration under article 137 that the application of Section 4 (1) of the Income Tax Act Cap 340 which sought to tax their salaries was inconsistent with article 128 (7). The majority of the Court of Appeal sitting as the Constitutional Court did not hesitate to rule that Section 4 (1) was in violation of article 128 (7). Mpagi Bahigeine JA on her part stated that since by the nature of their work, judicial officers can not engage on other business so as to bridge the financial vacuum besetting them, corruption will be nurtured by a system that fails to pay its judicial officers well. That without un diminishable or untaxable remuneration or compensation, the principle of the independence of the judiciary will have become nugatory and a mere mockery as lawyers will be less willing to join the Bench in preference of their lucrative chambers.

e) Article 128 (8) states that the office of a Chief Justice, Deputy Chief Justice, Justice of the Supreme Court, Justice of Appeal or Judge of the High Court shall not be abolished when there is a substantive holder of that office. This provision is made stronger by article 144 (1) which adds to the strength of this security of tenure. The retirement age of the Chief Justice, Deputy Chief Justice, Justice of the Supreme Court, Justice of Appeal is 75 years whereas 65 years are stated for the Principal Judge or a Judge of the High Court.

Moreover, under article 144 (2), a judicial officer may be removed from office only for i) inability to perform the functions of his office arising from infirmity of body or mind ii) misbehaviour or misconduct and iii0 incompetence. The word ‘only’ means that apart from those grounds, no other ground can be used to remove a judicial officer from office.

Even then, the removal must strictly comply with the procedure provided in article 144 (4) – (7). Under article 144 (4), the question of removal of a judicial officer should be investigated and referred to the President by either the Judicial Service Commission or Parliament. And under article 144 (4) (a) in the case of a CJ, DCJ or PJ, the tribunal appointed by the President to consider the matter must consist of 5 people who are or have been Justices of the Supreme Court or are or have been judges of a court having similar jurisdiction or who are advocates of at least 20 years standing. In the case of a Justice of the Supreme Court or Justice of Appeal, under article 144 (4) (b), it must consist of 3 persons who are or have been Justices of the Supreme Court or who are or have been judges of a court of similar jurisdiction or who are advocates of at least 15 years standing. In the case of a Judge of the High Court, 3 persons who are or have held offices as Judges of a court having unlimited jurisdiction in civil and criminal matters or a court having jurisdiction in appeals from such a court or who are advocates of at least 10 years standing. The net effect of all these requirements is that the security of tenure of judicial officers should not be under threat.

f) Judicial appointments

Under article 147 (1) (a), it is the Judicial Service Commission which advises the President in the appointment of top judicial officers and the JSC under article 147 (2), is independent and shall not be subject to the direction or control of any other person or authority. The mode of appointment seeks to discourage judicial officers from seeing themselves as the beneficiaries of presidential prerogatives so that they can at all times administer justice without fear that he who appointed will without assigning any reason disappoint when he deems fit.

g) Amendment of article 128 (1) must be the subject of a referendum

Under Article 260 (2) (g), article 128 (1) i.e. the 8 pillars above, on the independence of the Judiciary shall not be amended unless (a) it is supported at the 2^nd and 3^rd readings in Parliament by not less than two thirds of all members of parliament and (b) has been referred to a decision of the people and approved by them in a referendum.

While commenting on this requirement in MASALU MUSENE’s case, Twinomujuni JA noted that its justification was that the Constituent Assembly who framed the Constitution were apprehensive that the other 2 strong arms of government might one day seek to destroy the 8 pillars of an independent judiciary. That all the 8 pillars require a referendum since to amend or remove any one of them would be to amend article 128 (1) by infection. To him, article 260 (2) (g) goes to show how far the Court of Appeal in their wisdom were prepared to go in order to establish and ensure retention of an independent judiciary.

h) The Judicial Code of Conduct, 2003

The Code has 6 principles which encourage determination of the Judiciary. They include independence, impartiality, integrity, propriety, equality and competence and diligence. The Principle of independence which is more pertinent requires that a judicial officer shall not be influenced by any direct or indirect extraneous influence, inducements, pressures, threats or interference from any quarter or for any reason and he or she shall reject any attempt arising from outside the roper judicial process to influence his decision. The Code also gives independence at an individual level too, thus Article 149 which requires judicial officers to take oath in the 4^th schedule before assuming office is to ensure judicial power is exercised in accordance with the constitution and dispense justice without fear or favour.

Independence of the Judiciary requires transparency of the process of appointment of judicial officers. This is to ensure that persons of good repute and moral conduct are appointed to the courts as well as to shelter judicial appointment from political and sectarian tendencies.

The Judicial Service Commission (JSC) has been seen as an impartial body which allows for the appointment of Judges based on merit rather than political inclination. But not everybody has shared this view unanimously. There have been questions raised about certain appointments or the timing of the appointment with allegations of political patronage. This was particularly the case with the appointment of Professor Kanyeihamba as Justice of the Supreme Court just shortly before the hearing of the appeal by the government in the case of Attorney General Vs Maj. Gen Tinyenfuza Const. Appeal No. 1/97. Godfrey Lule, Counsel for Gen Tinyefunza made an appeal to the Supreme Court for Justice Kanyeihamba to disqualify himself from hearing the appeal on grounds of likelihood of bias prior to his appointment he had been Presidential Advisor. Kanyeihamba refused to disqualify himself. Another victim has been Court of Appeal Justice, Steven Kavuma whom many see as a political appointee to the Bench to pacify and neutralize the Court of Appeal especially so because it also doubles as the Constitutional Court. Similarly, the appointment of Bart Katureebe a former Attorney General to the Supreme Court Coram was attended to with similar attacks.

Independence of the Judiciary requires that judicial officers are immune from any action or suit for acts or omissions by the officer in exercise of judicial power as stipulated under article 128(4). The purpose if this provision is to ensure that the judicial officer is not destructed from carrying out his or her functions in order to deal with pending actions or suits as well as to ensure that he exercise justice freely without fear that one of the parties may institute a civil suit in respect of the decision read out by the judicial officer.

Refer to John Arutu V AG. Const. Petition No. 4/97 and Egbe V Adefarasim & Anor (1986) LRC (Const) 596.

The untamed president in the politics of Uganda seeks to manifest the hangover of the colonial era where all power was beginning from and returning to the colonial Governor, the exhibit of colonial power and whose presence meant that he was acting as the Chief administrator, Chief legislator, Chief Judge, Chief Police Officer and Chief Executioner. This colonial legacy seems to have been systematically inherited by post-independence regimes.

As early as independence, the 1962 Constitution reflected this hangover. Plus being the Commander-in Chief of the Armed forces, the President was empowered to appoint and dismiss chairmen and officers of the Public Service Commission and the Judicial Service Commission. Similarly, the same applied to the Chief Justice and the DPP. Courts were thus effectively prevented from inquiring into whether the President had acted upon the advice of anyone or indeed whether he had acted rightly.

The 1967 Constitution eroded other arms of government even more. Concerning courts, the most effective fetter on the Judiciary was the presidential power over the appointment of the Chief Justice and although concealed, the power to dismiss.

Independence of the judiciary was tested in recent times and it appears that the government failed miserably to stand up to the test. In the Uganda Law Society V Ag Constitutional Petition No. 18 Of 2005, the doctrine was held to have been blatantly violated. The background to it was that Rt. Colonel Kiiza Besigye, a leader of the political party known as the FDC and 22 others (the accused) were jointly charged with treason and misprision of treason under the Penal Code Act. The indictment was then read to them. The 1^st accused, Dr. Besigye was separately charged with rape. They were later committed to the High Court for trial. On 16, November 2005, the accused were taken to the High Court for a bail application before Lugayizi J. 14 of the accused satisfied the conditions for grant of bail and were granted the same. However, because of certain acts of the security personnel at the High Court premises, the bail papers could not be processed. The security men were dressed in dark clothes and heavily armed. They entered some of the Court offices and interrupted the court’s normal duties. The accused in consequence thereof had to be taken back to prison. The petition therefore sought among other declarations a declaration that the acts of the Anti-Terrorism Task Force Urban Hit Squad at the High court on 16^th November 2005 contravened articles 23(1) & (6) and 128 (1) and (2) of the Constitution. The court held that the said acts contravened the independence of the judiciary. That there were enough police personnel at the High Court premises and accordingly, the deployment of the Anti-Terrorism Task Force was completely unnecessary. In his judgment Engwau JA noted that ‘under article 128 (3) of the Constitution, all organs and agencies of the state are required to accord to the courts such assistance as may be required to ensure the effectiveness of the courts. What those military personnel did that day was not an assistance envisaged in article 128 (3) of the Constitution’

In her judgment Byamugisha JA concluded that ‘the acts of the military did interfere with the normal operation of the court and its independence in that the accused persons who had been granted bail were unable to process their bail documentation because of interference by the military. It was in my view a threatening scenario and it contravened the provisions of article 128 of the Constitution which guarantees the independence of the judiciary…’

The after math of this clear abuse of the independence of the judiciary forced the Principal Judge Justice Ogoola James to write a poem about the events at the High Court which he described as ‘the most naked and grotesque violation of the twin doctrines of the rule of law and the independence of the judiciary’. To him, this amounted to the defilement and desecration of our temple of justice. He equated the act to the heinous days of Idi Amin when Chief Justice Ben Kiwanuka was abducted from the premises of Court never to be seen alive again.

Shortly thereafter, the Uganda Law Society also issued a statement criticizing the acts. The Uganda Judicial Officers Association also followed suit. Members of the Uganda Law Society fully robed later protested in front of the High Court protesting the deterioration of the rule of law and the immediate resignation of the Attorney General, Khiddu Makubuya. They also issued a statement to the effect that they will no longer recognize the Attorney General. The East Africa Law Society also issued a statement challenging the said violations. Similarly, the International Commission of Jurists showed its own fears and immediately sent a Commissioner to oversee the Besigye trial.

As if these events were not enough to show that the independence of the judiciary had already been violated, on November 18^th,2005 Lugayizi J withdrew from the treason case. He did not give any reasons for doing so but many believe that it was intimidation from the State. The Principal Judge then took over the Besigye hearing.

In this heat, on November 19^th, 2005 there was an NRM National Delegates Conference which returned Y.K. Museveni as the unopposed party Chairman and presidential candidate. He in an unprecedented speech threatened the judiciary by stating openly that he would not hesitate to fire judges who unjustly issue eviction orders. He said ‘The government will not tolerate the eviction of tenants caused by the rulings of corrupt judges and magistrates. I will suspend any judicial officer and constitute a judicial commission of inquiry into his or her activities, if there is any evidence of any violation of the Land Act…’

The events of 16^th November 2005 created a new error of disrespect for the judiciary. Never had so clear a statement about threatening the judiciary ever been made by an executive leader.

On November 18^th, 2005, the drama continued. Dr. Besigye’s co-accused were charged with terrorism before the General Court Martial (GCM). Terrorism charges must be tried by the High Court under Section 6 of the Terrorism Act No. 14 of 2002 but the UPDF Act gives the GCM jurisdiction over any crime if the suspect is an ex-military or a civilian found to have aided or abated in unlawful military operations or to be in possession of arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces.. 5 of the accused then petitioned the Constitutional Court challenging the constitutionality of the provisions of the UPDF Act. They as well challenged the parallel jurisdiction of the GCM and the High Court arguing that this would expose them to double jeopardy. The Uganda Law Society also independently lodged its own petition.

On November 24^th, 2005 when Besigye’s bail application was scheduled to be heard by the High Court, he was instead committed to the GCM on charges of terrorism and illegal possession of firearms. During the hearing, the Chairman of the GCM General Elly Tumwine ordered the arrest of two f Besigye’s lawyers, Aleb Alaka and Erias Lukwago who were released thereafter. The following day. The Principal Judge granted what he termed s interim bail to Besigye. He acknowledged the pending reference of constitutional matters to the Constitutional Court. Another big blow to the independence of the judiciary was again witnessed. Despite the bail ruling, prison authorities refused to release Besigye. Their reason was that he was still on remand in respect of the GCM. This was not made any better by rumours that the Defence Minister Amama Mbabazi and the DPP had visited the Chambers of the Principal Judge.

On November 29^th, 2005, Besigye’s lawyers filed a bail application at the High Court in respect of the GCM charges arguing that since the High Court was superior to the GCM, it has unlimited jurisdiction to grant bail to Besigye. They also concurrently lodged Constitutional petition No. 17 of 2005 challenging the jurisdiction of the GCM arguing that the offences Besigye was charged with were based on the same facts as those over which he was being charged in the High Court which amounted to double jeopardy.

On November 2^nd, 2005, Justice Remmy Kasule ordered the GCM to stop hearing the case against Dr. Besigye. He also granted leave for him to challenge the authority of the GCM. He however refused to order his release.

On December 12^th, 2005 Justice Kasule refused to order Besigye’s release ahead of his nomination to run as a presidential candidate. His reasons were that the bail application which also challenged Besigye’s trial in the GCM could not be heard until the Constitutional Court pronounced itself on those very important matters referred to it. Nonetheless, he ruled that the GCM was subordinate to the High Court until the Constitutional Court rules otherwise. Accordingly, he further restrained the GCM from proceeding with the case hearing.

On December 15^th, 2005 the Constitutional Court started hearing Constitutional Petition No. 16 of 2005 by Besigye and 5 others. On December 19^th, 2005 the treason trial of Dr. Besigye started. At the same time, Besigye’s lawyers filed a fresh application challenging his continued illegal detention. Katutsi J on 22^nd December ordered the Commissioner General of Prisons to appear before him o explain why Besigye continued to be in detention even after the grant of bail by the Principal Judge. He also ordered the immediate stay of the GCM proceedings.

On January 2^nd, 2006 the rape case against Besigye started at the High Court. Katutsi J found the extension of Besigye’s remand warrant and his continued detention illegal. He ordered his immediate release upon which he was released. The independence of the judiciary was also later tested when Kagaba J who was hearing the treason case stood down.

More recently, the judiciary had displayed its anger towards the increased interference of the executive in judicial matters. On March 1^st, 2007, the PRA suspects being charged together with Besigye were produced at court for the hearing of an application filed by the Solicitor General. It was adjourned to March 7^th, 2007 at the request of the Solicitor General. Court in the interim ordered the release of the suspects on bail in accordance with its earlier order of 16^th November 2005 which had not been obeyed even at the time. As the Registrar of the High Court was processing the bail documents, security men surrounded the Criminal Registry and insisted on taking back the suspects to prison. A scuffle ensued at the court premises. 6 out of the 9 suspects satisfied the conditions for bail and the 3 who did not, were handed back to the prison’s authorities. The 6 however could not leave court premises because of a heavy deployment by the army. As the chaos continued, the army was directed by high ranking judicial officers at the court to vacate the court premises. They disobeyed and instead brought more reinforcement with a more aggressive intention of re-arresting the PRA Suspects. In the process, Mr. Kiyimba Mutale, counsel defending the suspects was badly beaten up and left soaked in blood. He was rushed to the chambers of the Deputy Chief Justice. At about 8:30 pm, the 6 suspects were released and handed over to their advocates but the military personnel using their high-handedness re-arrested them and whisked them to an unknown destination.

On 2^nd March 2007, the judiciary met in an impromptu meeting and resolved to begin a sit-down strike because of these violations. In a press-statement read by the Deputy Chief Justice, they demanded an apology from the Executive for the events and re-assurances of non-repetition of the events which were an affront to the independence of the judiciary. Accordingly, they resolved to suspend all judicial business with effect from March 5^th, 2007.

In her statement, the Deputy Chief Justice notable cited the following reasons for the strike:

a) Disobedience of court orders with impunity

b) The constant threats and attacks on the safety and independence of the judiciary and judicial officers

c) The savage violence exhibited by security personnel within the court premises

d) The total failure by all organs and agencies of the State to accord to the courts assistance as required to ensure effectiveness of the courts under article 128 of the Constitution

e) The recognition that judicial power is derived from the people, to be exercised by the courts on behalf of the people in conformity with the law, the values, norms and aspiration of the people of Uganda.

Shortly thereafter, the Uganda Law Society in an emergency meeting held on 6^th March 2007 resolved to suspend the Attorney General and the DPP together with the Inspector General of Police from the Law Society and to go on a sit-down strike after the Judges had resumed work. A meeting of the Judges and other judicial officers held on 7^th March 2007 resolved to continue with the strike instead of requests from the President and other high-ranking officers to resume duty. All this was said to be in retaliation of the gross violations of independence of the judiciary. Shortly thereafter, the Judges agreed to resume their duties effective 12^th March 2007 yet the advocates on the same day effectively began their 3 day sit down strike. This has been seen by many as the climax of the abuse of the doctrine of judicial independence in Uganda. The State has failed to show its commitment to respect one of the 3 arms of government and the future of judicial independence remains very much in doubt.

But apart from this, there have been other events were the executive has displayed public willingness to disrespect courts of law and their decisions. In 2006, State Minister for information and communication technology, Alintuma Nsambu was convicted by Masaka Grade One Magistrate Godfrey Kaweesa for issuing a bounced cheque to a Rakai- district based women’s group. He was sentenced to one year in prison or a fine of 3.2 million which he paid. Shortly thereafter, the then Minister for Ethics and Integrity, Dr. Nsaba Buturo disclosed that the matter had been discussed by government i.e. Cabinet which found that the magistrate had mishandled the case. He said that the magistrate was to be probed and that he had not considered all facts as he should have and that the decision involved some politics. He added that he had advised him against appealing and that ‘we shall handle the matter administratively’. It remains to be doubted what exactly these administrative measures meant. The Principal Judge in the days that followed undertook to stand up to the rights of the magistrate and to ensure that he would not be intimidated.

THE QUESTION OF POLITICAL REPRESENTATION: UGANDA’S TROUBLED HISTORY

The import of representation is the direct and indirect participation of citizens in the political and civic activities of their society. The principle of representation is stated in abstract and theoretical terms in article 2 of the Constitution which stipulates that the power belongs to the people who shall exercise their sovereignty in accordance with the Constitution. In effect representation means the rights of people to choose their representatives who shall represent them at all levels of government i.e. from LC (Local Councils) at the grassroots to the election of President and MP’s at national level.

Representation also imports the existence of popular will. The issue of representation entails a number of elements of both participatory and elective rights as well as the choice of modalities and processes for determining representation. Participating and elective rights are often covered under human rights and fundamental freedom which include:

i) The right to freedom of Assembly and Association under article 29(1) paragraphs (d) and (e).

ii) The right to participate directly or indirectly in the affairs of government under article 38.

iii) The right to vote under article 59.

The modalities of representation will invariably be elections and referendum by which the individual and the people chose those who will represent them in government and how they shall be governed.

Representation in Uganda has undergone dramatic changes since 1986. Prior to 1986, representation and election to public office was based on political parties’ platform and in effect representation and government was founded on candidature based on affiliation to political parties. However, since 1986, representation has been grounded or premised on the non-partisan principle in which the idea of individual merit is emphasized. Under the initial political system provided for under the Constitution and affirmed in 2000 by the referendum, the Movement political system is primarily premised on the principle of individual merit on the basis for the election to political office. This is stipulated in article 70(1) (d) as the major attribute of the Movement political system. In effect, the individual merit principle was for many years the basis of representation in Uganda until subsequent events that altered it. Since its inception as the basis of representation however, the individual merit principle was under attack not just in political debates but also in petitions before the Courts of law.

It appears that from the very early years, the Movement government was to be the victim of court challenges. One of the earliest cases was Dr.Rwanyarare & 2 Ors V Ag Misc. Appln. No. 85 Of 1993. In this case the Constituent Assembly Statute 6/1993 was unsuccessfully challenged. This was a constitutional petition by the UPC who sought to argue that the provisions adversely affected the right to free expression because campaigns based on political parties or any other sectarian ground were outlawed and criminalized. Additionally, it was argued that the public would be deprived of the opportunity of hearing views except those considered right by government. It was argued that this violated the rights of assembly and association of the Petitioners which were guaranteed by article 8 of the 1967 Constitution since they could not stand on individual merit as they belonged to their respective political parties. The Constitutional court held however, that the provisions were validly made by the NRC under LN No. 1/1986 and as such the Legal Notice was superior to the 1967 constitution and that rules made by the NRC to adapt the 1967 to the Legal Notice were valid. It was further held that the rules were temporary and part of an unusual and peculiar political process that would end with the promulgation of the new constitution. The court therefore expressed hope that at the end of the period, fresh considerations would arise and most likely during the debate of the draft constitution, all the burning issues would be resolved. Court also noted that the rights of the Petitioners of assembly and association were not absolute and could be restricted in the public interest. Mpagi Bahigeine J considered that the public interest in this case lay in the election of delegates to the Constituent Assembly to debate the Constitution for the good governance of the country and that this restriction was only transient and not permanent. The net effect was to facilitate the elections of Movement candidates to the CA.

Under the 1995 Constitution, it remained the basic argument that the individual merit principle remained a major factor of the restriction on multi-party activity especially given the provisions of article 69, 70, 72, 269 and 271. This concern was raised in the case of Dr. Rwanyarare & Anor V Ag Constitutional Petition 11/97 in which the petitioners argued that the provisions of article 69, 70, 72, 74, 269 and 271 were in contravention of their Constitutional rights to assembly and association under article 29(i)(d) and (e) and 38 of the Constitution. In essence the argument was that since the elections had taken place on basis of the Movement system and specifically under the individual merit principle, this barred candidate based on political parties and therefore the right to association and assembly had been infringed upon. Court dismissed the petition on several grounds but the most significant was that the petition was incompetent since it purported to challenge the constitutionality of provisions of the Constitution.

The individual merit principle as the basic foundation of the Movement system has been used in the election of the president and therefore replacing the quasi Westminster system that was previously in place for the president to be the leader of the party winning majority seats in parliament it has also been used for election of MP’s and representatives at all levels of the local councils. In effect, the principle has become the basis for representation in present day Uganda.

There was always a question as to the effect and genuineness of the individual merit principle as a basis for representation and participation in the affairs of government even within the Movement camp itself. The first observation was that while the principle is stated in the Constitution it was sometimes sidelined in practice as illustrated in a number of instances.

i) election of Movement Chairman

ii) 2001 Presidential elections

iii) Candidatures for 2001 parliamentary election.

iv) 2001 Presidential elections.

i) The 2001 Presidential Elections

When Dr. Kiiza Besigye stood for the presidential 2001 elections, it was contended that the Movement was only supposed to field a single candidate in the personality of the incumbent Museveni in the Movement Delegates Conference. The arguments raised were that fielding 2 candidates was detrimental for the Movement system. It was not substantiated what this actual detriment was or would be. This was a great test to the principle of individual merit. As a result of the attempt to endorse a single candidate for the 2001 elections, a petition was filed before the Constitutional Court to challenge that attempt i.e. Onyango Odongo V AG CP 1/2000.This new development put the principle at stake and for the first time led the public to believe that the Movement did not itself subscribe to the very system it had so much endeavored to give publicity as being the better alternative to political parties.

ii) Candidature for 2001 parliamentary elections.

The contention here was that in a constituency where 2 movement candidates were standing, one of them should stand down for the other who has better chances of winning. The issue of fielding a single candidate once again resurfaced and once again the principle of individual merit was not only tested, it was equally tremendously abused.

The other reason why it was thought that the principle could not work was that the politics in the country had now become polarized (divided) into Movementism Vs Multipartism replacing the previous polarization that was primarily between the political parties i.e. DP, UPC etc. The effect of this new polarization was that candidature for representation would eventually be understood in terms of whether the candidate ascribed to the Movement ideologies or was a staunch multipartist. The implication was that the individual merit principle was virtually rendered irrelevant and inconsequential in the electoral process and as a basis of representation

The principle of individual merit was this notwithstanding the foundation for the election of representatives since 1986 and became a fundamental principle of the Movement political system under article 70(1)(d). The principle required that the individual competence or personal merit of the individual rather than political affiliation. On the other hand, it was considered that the principle of individual merit was inimical to freedoms of association and assembly as a basis for representation. This particular contention was raised by the petitioners in the Rwanyarare 1 case in 1994 on the election of delegates and representation to the CA and in Rwanyarare 2 in 1997 as regards the election of MPs and representation in parliament.

Uganda has also had several referendums which appeared to many to be sources of near political anarchy. One of the most important referendum cases was the case of Paul Kawanga Ssemogerere & Anor. V Ag Constitutional Appeal No. 3 Of 1999. The Referendum and Other Provisions Act No.2 of 1999 was challenged in this case. The AG raised a number of preliminary objections to its hearing on the merit. The Constitutional court upheld the objections and dismissed the Petition. The Petitioners appealed to the Supreme Court which reversed the ruling of the constitutional court and ordered that the petitioners be heard on the merits. The petition was eventually heard by the constitutional court. In a unanimous argument, it was held that the Referendum and Other Provisions Act, 1999 was passed in a manner inconsistent with articles 88 and 89 of the constitution and was therefore null and void. That the Act was passed without the necessary quorum. The court added that the voice voting method of shouting ‘ayes’ or ‘no’ as applied in parliament contravened article 89 (1) of the constitution. This case indicated that the courts were increasingly standing up to the Executive and Legislature and it abuses of power.

NB: However, amidst the hearing another referendum law was passed before the challenged law was declared null and void. The new referendum law called The New Referendum (Political Systems) Act 9 of 2000 was presented to Parliament on June 7^th, 2000 and within 2 hours debated, read three times and passed into law. Under section 29 of the Act, all actions taken or purported to be taken in good faith for purposes of the referendum required to be held under article 271 of the constitution but before publication of the Act in the gazette were deemed to have been taken or made under the Act. The new law was in substance a replica of the old one.

This new referendum law was immediately challenged by the case of James Rwanyarare And Badru Wegulo V Ag Constitutional Petition No. 4 Of 2000. The petitioners sought an interim order to prohibit the holding of an interim order to prohibit the holding of the referendum until the final disposal of the case. The background was that on July 2, 1999 parliament passed the Referendum and Other Provisions At in accordance with article 271 (4) of the constitution. On June 7, 2000 it passed the Referendum (Political Systems) Act. On June 29^th, 2000, the second respondent organized and conducted a referendum. The petition was however not heard until the referendum was completed and was eventually dismissed in November 2000. In the judgment of the Constitutional Court held inter alia that the enactment of Act 9 of 2000 did not contravene article 79 (1) and (3) of the Constitution. Good governance required that since the legislation originally passed to cover the referendum was being challenged in Court, a specific Act had to be enacted for the holding of a referendum on political systems within the time limits set by the Constitution.

The political scene was also kept busier by the case of Ssemogerere & Zachary Olum V Ag Constitutional Petition No.6 Of 1999

In this case, the Petitioners sought a number of declarations and orders with respect to the constitutionality of the referendum on political systems and the Referendum and Other Provisions Act No.2 of 1999. Particularly, they contested the choice of a ‘political system’ through a referendum or an election under article 69 of the Constitution as being inconsistent with and in contravention of article 20, 21, 29 (1) (a), (b), (d), (e), 38 (2), 70 (f), 72 (1) and 75 of the Constitution. At the hearing of the petition, the AG raised several objections amongst which was that the constitutional court had no jurisdiction to interpret conflicting provisions such as articles 269 and 29 and to reconcile them. The majority of their Lordships agreed with the objection. 2 of their Lordships dissented arguing that the Constitutional court has powers to interpret and harmonize the constitution which responsibility could not be abdicated from in the vain hope that other authorities will amend the Constitution and harmonize it. By a majority of 2 to 3, the Petition was dismissed. The majority view was that the Referendum provided for a free and fair contest that enabled both the multiparty and movement system advocates to organize as individuals or groups under referendum committees for purposes of canvassing for the referendum.

The 2 dissenting Justices, Twnomujuni and Okello argued that the critical point was not whether both sides had constituted their national referendum committees but whether the law as it stood provided both sides equal opportunity to constitute their campaign machinery and the national referendum committee. In their considered opinion, political parties were legally incapable of participating in any exercise to form the referendum committees and would so remain so long as article 269 remained an interim provision for their bondage. To them, the framers of the constitution could not have intended such a monstrous result. They Also noted that the Constitutional Court had powers and responsibilities to interpret and harmonize the Constitution and could not abdicate from this duty in the vain hope that other authorities will amend the Constitution or harmonize it.

On August 31^st 200, following the June 29^th 200 referendum, the Constitutional (Amendment) Act 2000 was passed to make legal the legislation under which the referendum was held i.e. The Referendum (Political) Systems) Act, 2000. The Democratic Party petitioned the Constitutional Court in Ssemogerere & Anor. V Ag Constitutional Petition No. 7 Of 1999 challenging the new Act but lost on a majority of 3 to 2. The court pronounced itself only on procedural issues and declared that it did not have jurisdiction to interpret one provision of the Constitution as against the other. The Democratic Party then appealed to the Supreme Court which on January 29^th, 2004 in Ssemogerere & Anor. V Ag Constitutional Petition No. 4 Of 2002 held that the Constitutional (Amendment) Act, 2000 was unconstitutional because of the procedures followed when it was enacted.

Thereafter, government claimed that the decision had been based on false information and that the Court should review its decision. Government claimed that the Constitutional (Amendment) Bill, 200 was not passed and assented to on the same day and that the certificate of the bill existed and further that the number of votes was physically counted rather than relying on a voice vote. Thus, on August 3^rd, 2004, the government made an application to the Supreme Court to submit this additional evidence. The Supreme Court unanimously dismissed the application.

This decision in turn laid the ground for an unprecedented challenge against the Movement system. On June 22^nd, 2002, 2 weeks after the Act authorizing the June 29^th referendum was passed, the high-ranking leaders of DP again petitioned the Constitutional Court. Their contention was that the Act violated the constitution. On 17^th October 200 when the petition came up for hearing it was mutually agreed that that the parties should await a pronouncement on the constitutionality of the Constitutional (Amendment) Act, 2000. This decision however was not handed down by the Supreme Court until 29^th January 2004. Then on 25^th June 2004, the Constitutional Court unanimously held that the Referendum Act 2000 violated numerous provisions of the 1995 Constitution. Accordingly, anything which had been done or which had purported to be done under the Authority of that Act was invalid. That to rule otherwise would amount to authorizing the stampeding of Parliament as the case was to pass kangaroo style legislation oblivious to the requirements of the Constitution and to perform unconstitutional acts under the authority of such legislation. This the Court found unacceptable.

The decision caused stampede in government circles because its ultimate effect was that the Act being invalid the referendum held under it was also invalid. Accordingly, no political system was put into place by the said referendum and ultimately the current government was illegally in power.

After the decision, President Museveni again publicly showed his anger at the decision and at the Justices. He vowed to disregard the decision and promised to deal with judges who were taking it upon themselves to usurp the power of the people granted to them by the constitution. This was followed by a demonstration by supporters of the Movement government. On the other hand, the Chief Justice called upon the government together with its organs to ensure that the courts in the dispensation of their judicial functions were not intimidated.

Following these events, the State appealed to the Supreme Court. In Attorney General V Ssemogerere & Ors, the Supreme Court over turned the decision of the Constitutional Court (which had proceeded along the lines of the doctrine of prospective ruling by finding that anything done by the illegal government was itself illegal) and declared that whereas the Act which set up the referendum had been unconstitutional, the results of the 2000 referendum were nevertheless valid

THE PRESIDENTIAL ELECTIONS OF 2001: NEW CHALLENGES

The presidential election of 2001 also helped to bring to the fore front the question of political representation and to test the judiciary even more. In those elections Y.K. Museveni the incumbent president had been declared by the Electoral Commission as winner with a 69.3% majority over his closest and bitter rival Dr. Besigye who only polled 27.8%. The elections however were allegedly characterized by country wide electoral violence, malpractice and disenfranchisement. Dr. Besigye challenged the election of Museveni in Besigye V Museveni & The Electoral Commission wherein he alleged rigging of elections. The Supreme Court after a 2 weeks hearing dismissed the petition by majority of 3 to 2. The majority were convinced that although there had no doubt been irregularities in the elections to which they could not shut their eyes, they had not substantially affected the final outcome.

It was during this petition that it was also discovered that article 104 (2) of the Constitution was seen to be fraught with practical difficulties. Whereas article 104 (1) allows any aggrieved candidate to petition the Supreme Court for an order declaring that the person elected was not validly elected, article 104 (2) then unrealistically proceeds to require such petition to be lodged in the Supreme Court Registry within 10 days after the declaration of the results. The Besigye petition showed that this can be an insurmountable task. In his case, the lawyers had to move from district to district taking evidence from various people. Many believe that had there been the chance to seek more evidence, the result may perhaps have convinced the Supreme Court. The Supreme Court is also required under article 104 (3) to dispose of the petition in no more than 30 days from the date of its filing. It is also always opined that for a matter so grave and a matter going to the root of the question of representation of the people, that is perhaps so short a time within which to come to a well-considered decision.

The political scene was yet to be dormant in Uganda after all these events. The 1995 Constitution under article 271 (4), Parliament was mandated to make a law to give effect to that article. The article provided that the first presidential, parliamentary, local government and other public elections were after the promulgation of the constitution were to be held under the Movement political system. It was also provided that during the last month of the 4^th year of the term of parliament referred to in paragraph (2) of that article, a referendum was to be held t determine the political system the people f Uganda wish to adopt.

The first attempt at giving effect to this article came with the tabling of the Political Organizations Bill in 1998 but it was never carried through. In June 2002, a new Political Parties Organization Act (PPOA) was then passed. It among others provided that no party or organization could open branches below national level and further that no party or political organization was allowed to hold more than one national conference in a year. The parties were further prohibited from holding public meetings except for the national conference, executive committees, seminars and conferences at national level.

This Act was later challenged by Paul Kawanga Ssemogerere & 5 Ors V Ag Constitutional Petition No. 5 Of 2002, in which among other issues the Petitioners asked the Court to determine ‘whether or not Sections 18 and 19 of the Act established a one party state, the party being the movement contrary to article 75 of the Constitution’. The Petitioners sought to distinguish between the Movement refereed to and provided for in article 70 and the Movement provided for in the Movement Act. Their contention was that the former was a political system while the latter was a political organization. The Constitutional Court accepted these arguments and found Sections 18 and 19 of the PPOA to be unconstitutional. The government appealed to the Supreme Court but on June 21^st, 2004 withdrew the appeal.

This development allowed political parties to participate more freely in the political affairs although they still had to register with the Registrar General.

The political scene was again full of activity. In February 2001, the State set up a Constitutional Review Commission (CRC). Its report was extensively debated by the relevant stakeholders. The Government subsequently issued a White Paper based on the Report which was debated by Parliament’s Legal and Parliamentary Affairs Committee. On 15^th February 2005, the Attorney General tabled an Omnibus constitutional amendment Bill before Parliament the object of which was to amend a wide range of constitutional provisions at ago. While the Bill was still before the Legal and Parliamentary Affairs Committee for consideration, a petition emerged challenging the constitutionality of the Omnibus Bill. This was in Miria Matembe, Ben Wacha & Abdu Katuntu V Ag Constitutional Petition No. 5 Of 2005. At the time of hearing the petition, the Committee had not yet submitted its report on the Bill and the Attorney General contended that the petition was thus premature. The majority of the Constitutional Court accepted this view and held that before a bill is enacted into law and becomes an Act of Parliament, it is evidently premature to resort to court to challenge its constitutionality. Court also stressed the importance of the doctrine of separation of powers holding that the Constitution does not require the court to supervise the functioning of the legislature in every aspect and at all the stages of its work. Care must be taken to ensure that the principle of separation of powers is duly observed by the 3 arms of government to avoid erosion of each other’s constitutional functions. The function of the court is not to interfere in the operations of the executive and the legislature but to ensure that they comply with their mandate. It was noted that ‘the executive and legislature must be left to perform their constitutional duties without undue interference from the courts. This would guard against overzealous litigants from dragging these government organs to court prematurely each time a bill is tabled in Parliament. There is need to avoid unnecessary obstruction of the conduct of the affairs of state. We are mindful of the mandate of the Court to ensure that the Legislature complies with the legislative procedure of Parliament to keep it on the constitutional track. However, this must be done within the constitutionally recognized parameters. Mpagi Bahigeine JA in her dissenting judgment thought that whereas separation of powers must be respected, in a Constitutional state, courts are the fountain of constitutionalism and have to remain vigilant about legislative procedures. They could not simply close their eyes because it was too early in the process to interfere. Despite these strong words, the petition was dismissed on a 3 to 2 majority.

The government eventually decided to withdraw the Omnibus Bill alleging that it had done so after wide consultations with government leaders, political parties and all stake holders.

THE 2005 REFERENDUM ON POLITICAL PARTIES

This referendum was meant to relax the restrictions that had been placed on political parties. Article 74 (1) of the 1995 Constitution provides for the holding of a referendum if requested by a resolution of more than half the members of Parliament. On May 3^rd, 2005 parliament passed a resolution directing the Electoral Commission to organize a referendum to enable Ugandans to decide if they wanted to retain or t change the Movement system. On May 5^th, 2005 the EC received the resolution and began making preparations.

During these preparations, the petition of Okello Okello & 6 Ors V Ag & Anor. Constitutional Petition No. 4 Of 2005. The Petitioners based their petition on the decision in Paul Kawanga Ssemogerere & 5 Ors V AG Constitutional Petition No. 5 of 2002 in which the Court declared the Movement and its organs a Political Party. The Petitioners argument was that since the no-party Movement System was a legal fiction and did not really exist as such, there was then no basis for the referendum. They claimed that article 69 (1) and (2) (a) of the Constitution which provides for the holding of a referendum to choose and adopt the Movement Political system offends the constitution. They wanted the court to stop the AG and the EC to organize the referendum. The court dismissed the applicant on a 3 to 2 majority. In its opinion, the holding of such referendum was a constitutional means enabling Ugandans to determine their political destiny. Despite the repugnancy of holding a referendum on human rights and freedoms, the one-party system is so entrenched that it must be changed through a referendum. While there are cheaper ways of changing the prevailing political system, that was a decision for the Parliament to take and not the courts. The Electoral Commission was accordingly simply implementing a constitutional requirement and the impugned provisions of the Referendum and Other Provisions Act, 2005 did not in any way infringe any provision of the Constitution. The Petitioners appealed to the Supreme Court, but the appeal was incapable of being heard as there was no sufficient quorum on the bench following the retirement of Kato JSC.

The greatest challenge to the new political opening up has been that the government has manifested its unwillingness to let political parties assemble even after the referendum decided that political space be opened up. This has been evidenced by the massive way in which the State has continued to disperse political rallies of the opposition political parties.

Qn. Examine the 2006 Presidential Election Petition No. 1 of 2006 and discuss its implications in light of Uganda’s political history.

FORMAT AND PATTERNS OF ELECTIONS AS REGARDS REPRESENTATION

The basic function of representation is to ensure that peoples of a particular constituency and interest group are effectively and adequately represented. This therefore requires that the persons enjoined to represent the constituencies have the mandate of the people and that mandate is reflected in the popular will of those people. The issues and questions have arisen with regard to the format for the representation of interest groups by the use of electoral colleges. These particularly was regards to representation in parliament of representatives for women, the army, youth, workers and person with disabilities under article 78(1) paragraphs (b) and (c). Consider the fact that the Electoral College for army representatives is the Army Council which is directly influenced by the Commander-in-Chief of the Armed Forces. As such the representation of the army cannot be said to fully be effective. Similarly, the electoral colleges for women representatives usually constitutes of a bunch of elite women in urban centers. The grass root peasant woman is not only denied a chance to vote and exercise her will but even the right to stand.

UGANDA’S FUNDAMENTAL RIGHTS & FREEDOMS: THE HOPE FOR CHANGE AND A BREAK AWAY FROM THE PAST

The protection and promotion of human rights is contained in Chapter 4 of the 1995 Constitution.

Article 20(1) seems to embody this natural law idea of human rights as it stipulates that fundamental rights and freedoms of the individual are inherent and not granted by government. On the other hand, the positivists theory contends that rights are a feature of positive law and must be enacted by legal provisions. The positivists would therefore argue that articles 21-42 reflect their basic ideology.

Human rights tend to be placed in classification including:

i) First generation rights which are largely civil and political rights and are essentially Eurocentric in origin ie articles 21-29.

ii) Second generation rights which are social, economic and cultural and are often associated with the socialist ideology for instance the right to work, housing, education.

iv) Third generation rights which are often collective and attributed to groups and were largely born out of decolonization of right to clean environment, self-determination, peace.

Human rights have different manifestations including the internationally, the Universal Declaration of Human Rights, UN Convention Against Torture, and regionally the European and American Conventions of 1950 & 1969 respectively and the African Charter of Human & Civil Rights of 1981 and domestically the Bill of Rights provisions in our 1995 national Constitution.

THE PROTECTION AND SAFEGUARDS TO THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS UNDER THE 1995 CONSTITUTION [CHAPTER 4].

Chapter 4 opens with article 20 which deals with the states of Human rights and their protection by government and other members of society. It was best espoused by Lugakingira J in Rev. Christopher Mtikila V Ag Of Tanzania Civil Case No.5 Of 1993 that ‘fundamental rights are not gifts from the state. They inhere in a person by reason of his birth and therefore prior to the state and the law’.

This means that these rights are merely re-stated, but the Constitution does not purport to be creating them, for they already exist. To that extent, they must be looked at in a different light from other legal rights. It is therefore important that the state should in no way always require permission from its organs and agencies like the Uganda Police in order for the citizens to enjoy these rights. This is the single most thing to remember when looking at the Bill of Rights.

Article 20(1) provides for the inherence of human rights meanwhile clause (2) requires that all organs and agencies of government and all persons to respect, uphold and promote human rights. In effect the observance of human rights is not only on part of the State but also to private actors and entities. This was reflected in the case of Kalawudio Wamala V Uganda Csc No. 442/96. This was an appeal against conviction and sentence by a magistrate’s court with regards to evidence that had been procured after the police had tortured the appellant. The High Court sitting in Masaka reflected on the significance of article 20(2) and held that the police as an agency of the government had failed in its duty as an organ of government to uphold those rights if it turned a blind eye on these unconstitutional acts. The High Court therefore held that the evidence obtained through acts of torture being in violation of constitutionally guaranteed rights should be expunged from the record of the trial.

THE RIGHT TO EQUALITY AND FREEDOM FROM DISCRIMINATION (article 21)

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

In Unity Dow V Ag [1992] Lrc Const. 623, the citizenship laws of Botswana prohibited or denied a woman the capacity to grant citizenship to her non-Botswana husband which was not the case for the men. Unity Dow challenged the citizenship laws as being discriminatory. The 1964 Constitution of Botswana had not provided for sex as one of the grounds of discrimination. However the Supreme Court held that given that Botswana had been a signatory to several international instruments including the African Charter [article 18 (3)] and the Convention of Elimination of All forms of Discrimination Against Women(CEDAW); it could not be assumed that the prohibition of discrimination on grounds of sex was not intended to be part of Botswana law. The Court accordingly upheld Unity Dow’s argument.

Similarly, in Longwe V Inter-Continental Hotels [1993]4lrc 221, the Plaintiff who went to the bar of the Intercontinental Hotels in Lusaka was prohibited from entering the bar because it was the policy of the hotel not to allow unaccompanied women into the bar. The Plaintiff filed a claim before the courts contending that the policy of the hotel violated her right to freedom from discrimination. The Supreme Court of Zambia held that given that the policy of the hotel only targeted women, it was discriminatory on grounds of sex.

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

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

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

PROTECTION OF THE RIGHT TO LIFE (article 22)

Article 22 protects the right to life in 2 situations.

i) The right of an existing living person

ii) The right of the unborn child.

The right to life guaranteed under article 22 is not an absolute right as it can be taken away in execution of a sentence of death or in the case of the unborn child in the situations authorized by the law. The deprivation of life by way of capital punishment or death penalty remains controversial. There have been arguments on the unconstitutionality of the death penalty with the more significant being that it contravenes the right of the individual not to be subjected to cruel, inhuman or degrading punishment or treatment which is contained in article 24 of our Constitution.

The argument is on 2 grounds: -

a) The forms of execution are inhuman and that it dehumanizes all those who participate in the execution of the death penalty.

b) The “death row” phenomenon occasioned by delays in carrying out the death sentence amounts to inhuman treatment.

However, to ensure that the right to life though not absolute may not be arbitrarily taken away, the following safeguards have been included in article 22 (1):

a) It must be passed by a court of competent jurisdiction such that an LC court for instance does not pass a death sentence’

b) In a fair trial (article 28(1)),

c) In respect of criminal laws of Uganda (article 28 (7), and (12) and

d) It must be confirmed by the highest appellate court.

There has always been debate as to whether article 22 constitutionalizes the death penalty or only recognizes the existence of the death penalty. The Odoki Commission Report shows that the retention of the death penalty for heinous offences was on account that it was supported by the majority of Ugandans. In this sense, it may perhaps be right if the Courts legalise it as they would be dispensing justice ‘in conformity with law and values, norms and aspirations of the people’ under article 126 (1). In fact in SUSAN KIGULA, the Attorney General argued that both the Odoki Constitutional Commission of 1992 and the Ssempebwa Constitutional Review Commission of 2003 both show that the majority of Ugandans still favour retention of the death penalty and thus that it meant that it was not yet viewed in Uganda as a cruel, inhuman and degrading punishment. He relied on the case of Mbushu wherein the Tanzanian Court of Appeal observed that it was necessary to influence public opinion to abolish the death penalty. Okello JA agreed that the norms and aspirations of the people must be taken into consideration when interpreting this Constitution.

In Uganda the death penalty and its Constitutionality has been brought to the limelight by the Constitutional petition of Susan Kigula & 416 Ors V Ag Constitutional Petition No. 6 Of 2003. Okello JA in that case gave the lead judgment of the Constitutional Court and made a number of conclusions. He held that in Uganda, Section 98 of the Trial on Indictments Act provides the procedure to be followed by court after entering a conviction and before sentence. The procedure permits the court to make inquiries before passing sentence to inform itself on the appropriateness of the sentence to pass. The section provides as far as is relevant as follows ‘The court before passing any sentence other than a sentence of death, may make such inquiries as it thinks fit in order to inform itself as to the proper sentence to be passed and may inquire into the character and antecedents of the accused person….’

That provision makes a distinction between a person convicted under a mandatory sentence of death provision and those convicted under other provisions. It denies the court the chance to inform itself as to the appropriateness of the death sentence. In other words, a convict of an offence under a mandatory sentence of death provision is told that he cannot be heard on why in all the circumstances of his or her case, death sentence should not be imposed on him or her. I cannot think of no possible rationale at all for that distinction yet a person facing death sentence should be the most deserving to be heard in mitigation…. Article 22 (1) permits death sentence in execution of a sentence passed in a fair trial. That is clear. A fair hearing must basically mean hearing both sides. Refusing or denying a convict facing 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 principle of equality before and the law guaranteed in article 21 nor with the right to a fair hearing guaranteed in articles 22 (1), 28 and entrenched in article 44 (c). The procedure which denies the court opportunity to inform itself on any mitigating factors regarding 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. Our Constitution has spelt out the powers of the three organs of state namely the executive, the legislature and the Judiciary. It gives the Judiciary the power to adjudicate. Therefore, 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 power…In the result I find that the various provisions of the laws of Uganda which prescribe mandatory death sentence are unconstitutional. They are inconsistent with articles 21, 22 (1), 24, 28, 44 (a) and 44 (c) of the Constitution.

On whether Section 99 of the TIA which prescribes hanging as the legal method of implementing the death penalty is inconsistent with and in contravention of the Constitution, counsel for the petitioners had argued that that mode involved a cruel, inhuman and degrading treatment. The Judge held that the starting point is to recognize that the death penalty is recognized under article 22 (1) of the Constitution as an exception to the right to life. He also added that in a proper interpretation, articles 24 and 44 (a) were not intended to apply to death penalty permitted under article 22 (1). It is permissible in execution of a lawful sentence provided the law is followed. As such, implementing the death penalty by hanging cannot be held to be cruel or inhuman and degrading. Punishment by its nature must inflict some pain and unpleasantness, physically or mentally to achieve its objective. Section 99 of the TIA is therefore constitutional as it merely operationalises article 22 (1). It is not inconsistent with article 24 and 44 (a). The Court found the death penalty to be constitutional. In its view, the cases in other jurisdictions were not relevant because those cases were decided in countries whose Constitutions did not qualify the right to life like article 22 did. He therefore discounted the case of State V Makwanyane (1995) 1lrc 269 where in the South Africa Supreme Court found the death penalty to be inherently cruel, degrading and inhuman and therefore unconstitutional. The other case was the Tanzanian case of Mbushu & Anor V R (1995) 1 Lrc 216. Okello JA concluded that whereas execution by hanging may be cruel, it was not intended that articles 24 and 44 (a) should apply to it as it is permitted by article 22 (1).

The death penalty and its possible excesses was further debated nationally and globally in the arbitrary KOTIDO EXECUTIONS. On 25^th March, 2002 after a trial of less than 2 hours, the Field Court Martial found 2 members of the Armed Forces namely Corporal James Omedio and Private Abdullah Muhammad attached to the 67^th Battalion guilty of the murder of Reverend Fr. Declan O’Toole, a Mill Hill Father and two other people in Karamoja. Accordingly, they were publicly executed by firing squad. This was alleged to have occurred on 21^st March 2002. These executions created a general scare and concern in particular about the way it had been done and the Constitutional issues that arose from it. The Minister of Defence, Hon. Amama Mbabazi defended the executions as being Constitutional and within the ambit if Ugandan military laws.

The Constitutional issues that arose from these executions were the following:

a) Right of appeal to highest appellate court

Article 22 (1) provides that ‘no person shall be deprived of life intentionally except in 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 has been confirmed by the highest appellate court”.

‘a court of competent jurisdiction’. The Field Court Martial would on a casual reading of the NRA Statute would appear to be such court since it provides for the Field Court Martial which is then clothed with unlimited original jurisdiction over all offences committed by soldiers in war situations and military operations. It is however important to ascertain if the Karamoja disarmament exercise was such a situation contemplated for it to try. It has been argued that this was not an operational area as defined by section 77 (2) of the Statute. According to this argument, operation does not mean any area in which the army is actively engaged in military activity. Rather it envisages an area where there is direct confrontation with the enemy. In particular, there is the proposition that the Karamoja disarmament exercise was for the most part done by human persuasion and encouragement or intimidation. It could not therefore be called a ‘frontline’ in any sense. If this argument be right then although the Court Martial would have such jurisdiction in such cases, this was not such a case as this was not an operation. The word operation here, it is argued should not be given its dictionary meaning.
‘and the conviction and sentence has been confirmed by the highest appellate court’

It is clear that for a death sentence to be legal in Uganda, it must be confirmed by the highest appellate court. Under article 132 (1), this court is the Supreme Court of Uganda. In this case, it appears the General Field Court Martial arbitrarily constituted itself as the highest appellate court. It is on record that the execution procedure effectively ruled out this highly important appeal. The timing between the sentencing and the execution was peculiarly short. Execution was at 5: 00 pm whereas sentencing had been done at 12:00 pm. Secondly, the NRA Statute does not provide a right of appeal from its orders to the highest appellate court. It is notable however that under Section 83 of the Statute, a Court Martial Appeal Court I created to act as an appellate court from the decisions of the General Court Martial and under Section 84 a right of appeal is given to a person tried and convicted by the General Court Martial. It is not clear why the Soldiers were not given this right at least to a similar court. The Constitution does not make exceptions to the Court Martial and clearly the executions were legal and Constitutional.

‘a fair trial’

Article 28 (1) provides that ‘in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law’

This execution, it was argued was a clear violation of this non-derogable right. The speed with which the trial was conducted was unusual. It was reported by international human right watch dogs that the trial lasted a mere 2 hours and 36 minutes. Moreover, to aggravate the situation, no diligent and careful investigation could have been carried out. The execution took place less than 72 hours after the commission of the crime. It is always argued I defence of the state that the executions were carried out is fair trial. Whereas the executions satisfied the test of ‘speedy’ they certainly did not pass the test of ‘fair’. The hearing as well lasted less than 3 hours. The Army Commander, Major General James Kazini even suggested that it should not even have lasted 2 minutes.

‘Fair’ also presupposes that the prosecutors and those who pronounce judgment are well versed with the legal dynamics in order to do so. The material question is whether those who constitute it are well grounded in law to pass judgment. Although Section 82 of the Statute requires a legal officer to advise the court under section 82, clearly this does not make up for the apparent lack of legal training of those who preside over the Court Martial. This situation is more appealing since the Act under Section 89 enjoins military courts to as much as is practicable observe rules of procedure and evidence observed in ordinary civilian courts. The legal inadequacies of the 9 members presiding over the Court therefore beg the question whether we can expect any fair trial in such a court. It appears that the Statute does not require the members of the court to be grounded both in procedural and other laws as one would expect.

Deprivation of the right to life was again in a similar contest challenged before the Constitutional Court in 2002 in two petitions. This was in the Uganda Law Society V Ag Constitutional Petition No. 2/2002 and Jackson Karugaba V Ag Constitutional Petition No. 8/2002. These two petitions were filed in the wake of the March 2002 military executions in Kotido and the contention was that the trial before a Field Court Martial and the subsequent executions were in violation of the rights guaranteed under the Constitution in articles 22 and 28. Prior to the hearing of the substantive application, an application was filed seeking stay of any further application of Section 29 (1) (a) of the NRA Statute No. 3 of 1992 on the military law and further executions in the military pending determination of the petitions. The crux of the application was that death penalty convictions of a Field Court Martial were under the military law without appeal and therefore were not ‘confirmed by the highest appellate court’, the Supreme Court as required by article 22 (1). The Constitutional Court however unanimously held that the Field Court Martial was a ‘court of judicature’ and thus consequently it was a court of competent jurisdiction in the spirit of article 22 (1). It however disagreed that a Field Court Martial should be subject to procedures of appeal as envisaged under article 22 (1). That Field Court Martial is a special court in light of the fact that it is even accorded certain dispensations under the Constitution. Court therefore concluded that a Field Court Martial court is a special court which should not be bogged down by appeal procedures. The Court referred to the recognition of the special nature of a Field Court Martial under article 121 (6) and 137 (5) of the Constitution and observed that ‘ a Field Court Martial is established for the trial of both service men and women who commit offences in a field of operation where it is impracticable for the offender to be tried by any other military court. The Court is established before the soldiers depart for the operations, they are involved in. It is disbanded when the operation is completed. Its primary objective is to administer instant justice and instill discipline among the men and women at the front line…The Constitution itself regards a Field Court Martial as a special court which is only established to maintain law and order and military discipline in a field of operations where to employ the normal court structures would create problems for the Field Commanders.’ Accordingly, the Court was satisfied that Parliament never intended that article 22 (1) was to apply to the Field Court Martial.

This case has been seen by many as a loss of a great opportunity to bring to c account the operations of the FCM. A close reading of article 22 (1) makes it clear that it is not enough that the sentence has been passed by a court of competent jurisdiction (which the Court found the FCM to be), whichever that competent court is, its sentence must be confirmed by the highest appellate court. The article does not make any exemptions. If the legislators had wished to exclude the FCM then they had ample language at hand to use. It was palpably wrong therefore for the Learned Justices to impute an intention on part of Parliament which it did not express itself. Moreover, the framers of the Constitution were aware that the FCM existed. Had they intended to exempt it then they would have been the best draftsmen to do so.

Equally, the Constitutional Court is enjoined to interpret the Constitution in a liberal and generous manner as earlier seen. It must not limit unduly a citizen’s rights unless they are expressly limited by the Constitution itself. In essence, the Court purported to take away a citizen’s rights by implication which is odd to the well know principles of constitutional interpretation.

It is also argued that a right of appeal is a well-known facet of the right to a fair trial. If we take it thus far then there is possibility to argue that by their decision, the Court were indirectly curtailing a non-derogable right under article 44 (c).

In Forum of Conscience V Sierra Leone Achpr Commn. No. 223/98

24 soldiers were tried and sentenced to death by a Court Martial for their alleged roles in the coup d’etat that overthrew the elected government of President Tijan Kabah. The Court Martial tried and convicted the soldiers and allowed no right of appeal against the conviction or sentence to a higher tribunal. It was noted by the African Commission on Human and People’s Rights that since the purpose of military courts is to determine offences of a purely military nature committed by military personnel there is a stronger case that, they must at all times comply with fair trial standards. The denial of a right of appeal, it was noted, was a blatant disregard of the right to a fair trial under article 7 (1) of the African Charter on Human and People’s Rights. The position was exacerbated by the fact that the violation was

now irreversible.

The right to life is always perceived in the sense of non-deprivation of the physical existence of the individual. It is therefore a right that requires the state to desist from acts that take away life. Over the decades, the question has arisen whether the right to life can include positive elements and therefore to extend the right to livelihood in the form of availing socio-economic factors that ensure sustenance and survival of the body. India has been the flag bearer in this trend. In Tellis & Ors V Bombay Municipal Council (1987) Lrc (Const.) 351, the petitioners argued that if they were evicted from their slum and pavement dwellings that would violate their right to life under article 21 of the Indian Constitution. They sought to argue that the right to life included the right to livelihood. The Supreme court accepted their argument and added that ‘if the sweep of the right to life conferred by article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away for example by the imposition and execution of the death penalty, except according to law. That is but one facet of the right to life. An equally important facet of that right is the right to livelihood. If the right to livelihood is not treated as part of the Constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness, but it would make life impossible to live’.

The passage above in TELLIS was cited with approval in the Ugandan case of Salvatori Abuki V Ag. In that case, the petitioners were banished from their homes for 10 years after serving a prison sentence for contravention of the Witchcraft Act. The Constitutional court struck down the Act as being unconstitutional and inconsistent with the Constitution which guaranteed citizens from cruel, inhuman or degrading treatment, the right not to be compulsorily deprived of property and the right to life. The court took judicial notice of the fact that most people in Uganda live in rural areas and survive on the land. Court considered that the banishment provisions would have the effect of excluding the banished person from shelter, food by denying him access to land and that such a person is rendered a destitute upon leaving prison.

Similarly the destruction of brothels in Dhaka was held to infringe the rights to life of the prostitutes by way of depriving them of their source of livelihood in Bsehr V Government Of Bangladesh (2000) and the right to life has been extended to mean and include the right to a clean and healthy environment in Indian Council For Enviro-Legal Action V Union Of India (1996) 2 Lrc 226 so has the right to employment (Ddheu V Delhi Administration (1993) 4 Lrc 182), education (Khrishnan V State Of Andreh Pradesh (1993) 4 Lrc 234), peace (Operation Dismantle Inc. V The Queen (1986) Lrc (Const) 421), shelter or housing (Lawson V Housing New Zealand (1997) 4 Lrc 369).

But it appears that the Courts even though willing to expand this right have at the same time exercised great caution. In Bat Ltd V Tean Ltd Civil Application No. 27 of 2003 (Unreported), the issue before court among others was whether unregulated smoking in public places amounted to an infringement of the rights of the non-smoking members of the public. BAT challenged the validity of TEAN’s action in Application No. 70 of 2002 being brought under article 22 (1) of the Constitution on grounds that it failed to specifically plead with particulars the intention to deprive life. BAT submitted accordingly that there was no cause of action. In upholding this argument, the Principal Judge noted that that failure to make full disclosure of the dangers or risks of smoking cigarettes to the consumers of the cigarettes was too remote to taking away of the life of such consumers. He noted that failure to disclose such dangers may in fact be attributable to such other reasons as not to reduce business of selling cigarettes. Otherwise, to attribute intention to kill to such failure would call for strict if not impossible proof. In the event that it failed to specifically plead the intention of taking away of life, the application disclosed no cause of action and would be struck out.

This decision has however been seen as bringing across a very rigid interpretation of the right to life and choosing to restrict it only to the physical termination of life whereas the Courts in other jurisdictions are now embracing the sustenance and quality of life as being part of the larger right of fully enjoying the right to life in a meaningful sense. Moreover, the Principal Judge ought to have remembered the purposive approach of interpreting the Constitution. In this sense, he would have given it effect by widely reading the right to life to include its quality after all he was protected by judicial precedent in Salvatori Abuki’s case. Many commentators see this as a wasted chance to make a decision that would have an usual but yet very rewarding result.

THE RIGHT TO PERSONAL LIBERTY (article 23)

Article 23 essentially secures the right to personal liberty, but it also secures the security of the person of the individual. It is also often interrelated with the right to movement under article 29(2). Further it also construed as part of the guarantees within the criminal justice system. Article 23 provides not only the substantive right to personal liberty but also procedural and remedial guarantees. The purpose of article 23 is to regulate conduct of those persons that get in contact with the individual and are likely to violate personal liberty – such persons include the police, the prisons service, the courts and to an extent the armed forces and the intelligence services.

Article 23 presumes that the rights to personal liberty is inherent and that the state and its agencies must desist from acts that interfere with that liberty.

In article 23(1) are provided the exceptions when the right to personal liberty may be interfered with. These include where the restraint is in pursuance of an execution of a sentence or order of a court, in execution of the order of a court made to secure the fulfillment of any obligation imposed on that person by law, for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda. It also covers the restraint of specific categories of persons and these include minors for their education or welfare, persons of unsound mind, drug addicts and alcoholics for their treatment, unlawful emigrants and entrants for their deportation and extradition. Restraint is also justified for health reasons that is existing or prevailing health concerns in which case personal liberty will be restricted to prevent spread of an infectious or contagious disease. Paragraph (h) includes any other authorized circumstances by law similar to those in clauses (a)-(g) of that clause.

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

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

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

In the case of Christopher Sajjabi Nsereko V Ag Complaint UHRC No. 112/99, it was held by the Commissioners of the Uganda Human Rights Commission that by refusing to tell the complainant the reasons for his arrest at the time of the arrest they violated the provisions of article 23 (3) of the Constitution. 2 million shillings was accordingly given to the complainant as general damages for the violation of the right to personal liberty.

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

Similarly, in The Queen V Therenes [1986] LRC 455, the police entered the dwelling place of the accused and proceeded to search the place where they recovered a blood-stained shirt. Thereafter they took fingerprints and statements from the accused after cautioning him of his right to silence. The Canadian Supreme Court held that a caution must be accompanied with notification to the accused of his right to consult a lawyer and if need be the right to a toll-free phone call for purposes of consulting a lawyer and that in the circumstances since The accused was not informed of his aforesaid rights, the act of the police was in violation of his Constitutional right and the entire evidence was thrown out on that ground. Moreover, to be in detention, you need not be in a cell. It was held in this case that the phrase ‘detention’ means a restraint of liberty of varying duration other than a mere arrest. It was therefore defined to include situations where the movement of an individual comes under the control of another person.

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

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

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

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

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

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

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

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

In Re Sheikh Abdul Sentamu Constitutional Reference No. 7 Of 1998, an application for a writ of habeas corpus was made regarding the applicant, Sentamu but on 2 occasions there was no return on the writ. Subsequently, Sentamu the other accused were charged with treason before a magistrate’s court in Kasese. When the issue of the writ of habeas corpus was brought to the attention of the magistrate, he decided that this raised the question of enforcement of Constitutional rights and referred the matter to the Constitutional Court under article 137(5). The Constitutional Reference was dismissed by the Constitutional Court as incompetent given the fact that it was far the enforcement of rights and freedoms and not the interpretation of the Constitution. However, Justice Tabaro noted that the right to an order of habeas corpus is to secure the personal liberty of the individual.

THE RIGHT AGAINST SUBJECTION TO TORTURE, DEGRADING OR INHUMAN TREATMENT (article 24)

Article 24 secures the respect to human dignity by prohibiting torture, and inhuman or degrading treatment or punishment. The freedoms under article 24 are absolute given the provisions of article 44(a). Torture refers to acts against the physical integrity of the individual while cruel, inhuman or degrading treatment or punishment refers to conduct that causes unnecessary suffering, be ashamed or destroys the dignity of the person. What is cruel or inhuman is dependent on a particular conduct and circumstances and therefore the term has come to be applied to a wide range of conduct including:

i) Death penalty being considered inhuman and degrading punishment.

Makwanyane’s case [1998]1 LRC 269

ii) Corporal punishment is perceived as inhuman and degrading punishment.

In Uganda, this got its first precedent not so long ago in the case of Simon Kyamanywa V Uganda Constitutional Reference No. 10/2000 (Unreported). The appellant in his appeal to the Supreme Court had challenged the 6 stokes of the cane imposed against him on top of the sentences of imprisonment. The strokes had been ordered and imposed by the Court of Appeal under Section 274 A of the Penal Code Act. The court had so done after it had quashed a conviction for aggravated robbery against him and substituted it for one of simple robbery. He thus sought declarations that corporal punishment was a ‘form of torture, cruel, inhuman and degrading treatment or punishment’ and that the decision of the court of appeal in sentencing him to corporal punishment was in direct conflict with the Constitution. The Supreme Court chose to refer the matter of its Constitutionality to the Constitutional court. Before the Constitutional court, by majority of 3 to 2, the court found that corporal punishment was indeed unconstitutional and that it amounted to cruel, inhuman and degrading treatment or punishment. The court also declared Section 274 A of the Penal Code Act (as amended by Act 1 of 1966) and any orders made under it unconstitutional. The state argued that a difference must be made between unreasonable administration of corporal punishment and disciplined or supervised punishment. It gave an example of Section 108 of the Trial on Indictments Decree (now Section 109 of Trial on Indictment Act) which sought to regulate the administration of corporal punishment by stipulating the maximum number of canes and the presence of a doctor while it was being administered. Court jettisoned this argument and stated that:

‘Article 24 …is very clear. It does not make any distinction between the manner of application of any form of treatment or punishment which falls within the prohibited category. Corporal punishment by its very definition, which is inflicting pain by beating a part of the body, falls squarely within the category prohibited by article 24. It is by its nature a cruel, inhuman and degrading punishment which amounts to torture. The amount that applying strokes without ‘thrashing’ does not contravene article 24 is untenable”.

The court noted that the arguments of the state had no merit in them especially given the fact that the right against such treatment is one of the non-derogable rights preserved by Article 44.

In relation to the common phenomenon of corporal punishment meted out in schools, there is the case of Mpondi Emmanuel V Nganwa High School Uhrc Complaint No. 210 Of 1998. This case was the first precedent of a school being dragged before a judicial body for administration of corporal punishment to its students. The complainant, a student at the school had been punished for entering the staff room without permission. Hi contention was that the said punishment violated articles 24 and 44 (a) of the 1995 Constitution. During the hearing, the presiding commissioners concluded that the act of punishment had been ‘arbitrary, excessive and outside the ordinary and the normal or accepted form of punishment normally meted out in school establishments’ and thus having considered it cruel and inhuman’ awarded the complainant 2,000,000/=. Although this was a case of some degree of importance as a deterrent to schools, its weakness lies in the seemingly flawed interpretation of the Commission in trying to suggest that there is some acceptable and ordinary form of corporal punishment which may be meted out in schools. Clearly after the Kyamanywa case, this argument or reasoning must be taken to be fundamentally flawed and inaccurate. As the court noted in that case, the Constitutionality of corporal punishment is not measured by the mode of application or the manner. It is the very meting out of corporal punishment itself which is unconstitutional. Nevertheless, the case is a glimmer of hope in this old practice in schools. Unfortunately, most schools still use it as a form of punishment.

If any other authority was ever required to show this trend, then the Fijian case of Naushad Ali V State delivered on 21^st March 2002 would suffice. Therein, the Fijian Court of Appeal declared that corporal punishment in schools was unconstitutional.

iii) Exclusion or banishment orders depriving a convict access to ancestral land

Salvation Abuki V AG CC 1/97

iv) Prison conditions have also been construed as inhuman where there is deprivation of food and water, lack of exercise, crowded cells, solitary confinement, lack of reading materials.

v) Wife or husband battery

FREEDOM FROM SLAVERLY, SERVITUDE OR PERFORMANCE OF FORCED LABOUR (article 25)

Article 25 secures the freedom from slavery and servitude under clause 1 and freedom from performance of forced labour under clause 2.

R V The Khadi of Kisumu Exparte Nasreen [1973] EA 153

The freedom from slavery and servitude is also an absolute right given the provisions of article 44(b). The freedom from performance of forced labour has limitations and clause 3 of article 25 defines instances which cannot be regarded as forced labour under the Constitution namely:

1. Labour regained as a consequence of a sentence of Court.

2. Labour not being a consequence of a sentence of Court but which is necessary for the hygiene and maintenance of place of detention in which a person may be.

3. Labour required of a member of a disciplined force as a part of that member’s duties as such or in the case of a person who has conscientious objections to military service, any labour which that person is required by law to perform in place of that service.

4. Labour required when the country is at war or there in an emergency of calamity.

5. Labour that is part of reasonable and normal communal and other civic obligations.

The right of freedom against performance of forced labour in Uganda was exemplified by the case of Ag V Major General David Tinyefuza Constitutional Appeal No. 1 Of 1997. In this case, Tinyefuza who had been appointed Senior Presidential Advisor on military advisors by the President sought to resign from the army, but his resignation letter was refused by the Minister of State for Defence, Amama Mbabazi. He in turn petitioned the Constitutional Court alleging that that act violated his rights to freedom from being required to perform forced labour under articles 25 (2) and 25 (3) (c) of the Constitution. The Constitutional Court upheld his claim. It held that Regulation 28 of the NRA (Conditions of Service) (Officers) Regulations, 1993 was not applicable to the Petitioner as he was not a member of the Army. In the opinion of the Court of Appeal Justices, army service required full time attention and therefore by implication when the President appointed the petitioner as Senior Presidential advisor, he was in effect terminating his employment in the military service. He appealed to the Supreme Court. The appeal raised several issues of Constitutional importance but as regards this particular contention, the court was tasked to decide whether the Minister’s letter turning down Tinyefuza’s resignation and requiring him to resign in accordance with procedures under the military laws (i.e. under Regulation 28 of the NRA (Conditions of Service) (Officers) Regulations which ordinarily would have required him to resign with the full permission of a Commissions Board) to which he was bound, was a violation of his rights mentioned above. Notable is that under article 25 (3) (c), ‘forced labour’ does not include ‘any labour required of a member of a disciplined force as part of that member’s duties as such or in the case of a person who has conscientious objections to service as a member of a naval, military or air force, any labour which that person is required by law to perform in place of that service’. It was, therefore, critical to the determination of this Constitutional question whether he was still a member of the armed forces, for only then would that resignation requirement be forced on him and then he would not complain about forced labour as the definition would exclude him. This became an issue because first it was argued that the very appointment as Senior Advisor terminated his military services and in the alternative that he was for long playing a redundant and inactive role in the army.

The majority of the Supreme Court Justices felt that he was still a member of the armed forces notwithstanding his appointment as Senior Advisor and notwithstanding his inactivity and non-deployment in military operations. It was also held that the Minister’s letter was just a piece of advice and did not violate any of his rights. The letter in part read ‘This is therefore to inform you that your purported resignation is null and void by virtue of the above quoted provisions (i.e. Reg. 28)…I would advise that you follow the right procedure in case you are contemplating resigning your Commission’. The letter was simply advising him to comply with Regulation 28 rather than subjecting him to forced labour. Accordingly, having failed to comply with the resignation procedures, he was still a member of the armed forces to whom military law applied fully and who had to resign according to the established procedures. If he had wanted to withdraw his labour he would have done so under article 40 (3) (c) which gives a right to every worker to withdraw his labour according to law (i.e. in this case by tendering his resignation to a Commissions Board and it accepting it).Wambuzi CJ held that:

‘it was an error in law to hold that the respondent was not a member of the armed forces. It follows that as a member of the armed forces, the provisions relating to forced labour were not applicable to the respondent. He had no rights to be violated”.

(Wambuzi CJ)

‘The position appears to be that the respondent holds two perfectly valid appointments one in the Army and the other in the civil service both of which require his full time but which quite obviously he cannot do. In my view the legal position is clear. The problem is administrative’.

Kanyeihamba JSC noted the peculiar character of the armed forces and stated that ‘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…For an officer to resign or leave the armed forces; the officer can not do so at will or without the formalities and procedures as prescribed by law being complied with. It certainly would be a matter of great danger to the national security, if it were ever to be held by any one or authority that members and officers of the Uganda Peoples Defence Forces could resign or be removed at will and anyhow outside the law’.

Oder and Mulenga JSC dissented. To Justice Mulenga the proper interpretation of Section 5 (1), 6 (1) and 14 (1) of the NRA Statute was that ‘if an individual ceases to be deployed, membership of the forces ceases …an officer who is not on continuing full time military service is not subject to military law because he is not a member of the Regular Force’. Oder J thought that the effect of the appointment as Senior Advisor was to remove the petitioner from military service. In his opinion, the fears expressed by the majority were uncalled for. This case to him was distinguishable in the sense that the Petitioner had not opted himself out of the armed forces, rather, he had been removed by the competent authority. To his mind therefore, the Petitioner had long ceased to be a member of the armed forces and therefore the said resignation procedure was inapplicable to him and so long as he was required to follow it, this was a violation of his Constitutional rights.

THE RIGHT TO PROPERTY (article 26)

Article 26 guarantees the right to property either individually or collectively. As such an individual cannot be deprived of property except in certain circumstances and conditions which are;

i) That the acquisition of property is for a public purpose under article 26(2)(a).

iii) The acquisition of property is founded on the law, there must be an act of parliament or mode under a ministerial order which calls for prompt payment of a fair compensation and the right of access to a court of law.

The Land Acquisition Act (Cap 226) which is the principal law that governs such matters appears to pass this test as it provides for the right to compensation under Section 5 (4) and the right of appeal to the High Court is provided for under Section 13 of the Act.

It appears that whereas a person may be compulsorily deprived of property in the public interest, the conditions specified in article 26 (2) (b) namely payment of adequate and fair compensation of such property and the right to access to a court of law. It is not simply enough to state that the public interest requirement was satisfied. It is also important to note that the compensation must be ‘prior to the taking of possession or acquisition of the property’ and not after. In the case of Julius Okot V Ag Complaint No. UHRC/G/149/2000. The army had occupied the complainant’s land in Northern Uganda and established a military detach on it. It was held that whereas the occupation was in the interest of public defence, safety and order under article 26 (2) (a) of the Constitution, it still remained unlawful in so far as the conditions in article 26 (2) (b) (i) were not fulfilled. The government had refused to promptly pay fair and adequate compensation or at all to the complainant’s family for the acquisition of the land. The occupation continued to be an act of trespass.

In Shah V Ug [1969] EA261 and in Ssempebwa V Ag Const. Case No. 1/87, the courts construed a judgment debt as amounting to ‘property’ in terms of provisions of the 1967 Constitution with the effect that the judgment holder could not be validly deprived of the same unless the safeguards in the Constitution were complied with to the letter..

In this area one of the other hotly contested issues has always been the law in the Government Proceedings Act Cap 77 which prohibits certain orders like an injunction or eviction to be made against Government. This position had always been held to be trite and had been decided by the highest authority in the land. In the case of Ag V Silver Springs Hotel Ltd & Anor. SCCA No.1 of 1989, the Supreme Court here affirmed that an injunction whether temporary or permanent cannot lie against the government under the laws of Uganda. The rationale is that government machinery should not be brought to a halt. If the position was otherwise, government would be subjected to embarrassment and therefore that this provision was meant to ensure that the machinery of government goes on. For years, this decision has been a clear one on this point and it has been used (badly most of the time) by the government to occupy property which is private property. The Act gives a soft cushion to such activities.

It appears however that the courts of law have been post-1995 willing to abandon this position of the law. The most notable attempt to scrap this immunity from government was seen in the case of Osotraco (U) Limited V Ag. HCCS 1380/1986 (Unreported).

The plaintiff company sought orders for the eviction of and a permanent injunction from occupation against the defendant from the suit premises. The Plaintiff Company was the registered proprietor of land comprised in Plot No. 69, Mbuya Hill, Kampala. The property was however occupied by employees of the Ministry of Information who refused to vacate despite a request to do so. The ministry claimed the property to be theirs. As a result, the company filed this suit seeking for an order of eviction, a permanent injunction, special and general damages, mesne profits, interest and costs of the suit. Having found the plaintiff to be the registered proprietor, the court addressed the issue of whether the plaintiff was entitled to an order of vacant possession or eviction of the Defendant from its property. The Government Proceedings Act, Section 15 (now 14 (1) (b)) prohibited court from making any order for the recovery of land or property but instead in such cases to make declaratory orders that such person was entitled to such property. Engonda Ntende J doubted whether this provision was in conformity with the Constitution in particular because it denies the successful party a remedy that is appropriate namely recovery of his land. He traced the historical origins of government immunity against eviction under the Act and noted that it had its origins from the protection of the crown as the fountain of justice and that it was merely imported in Uganda. He thus embarked on an unusually revolutionary challenge of interpreting the section vis-à-vis the 1995 Constitution and in particular with articles 26 on ownership and non-deprivation of property and 50 and 126. He noted that section 15 (2) was rooted in the colonial doctrine of courts being enjoined to exercise judicial authority on behalf of the crown. He noted however that the position was different after the 1995 Constitution since article 126 (1) now required courts to exercise judicial power in the name of the people and in conformity with law and with values, norms and aspirations of the people. His conclusion was that Section 15 runs counter to the spirit of the Constitution. He added that not only should individual rights be pronounced upon; courts must as well be in position to secure effective remedies for the realization of those rights. In his view therefore:

‘if government is in wrongful occupation of property, substantive justice demands that it be ordered to vacate. A declaratory order leaves a successful party at the mercy of government functionaries as to when he is to enjoy the fruits of a successful action against government for the declaratory order cannot be enforced. In the present action, the plaintiff is seeking to enforce his right to the suit property against wrongful infringement by government. Right to property is a right protected by the Constitution in article 26 there of. Article 50 (1) of the Constitution assures such a person redress before the courts. Redress in my view refers to effective redress and nothing short of this. A less than appropriate redress in is not effective redress… In the circumstances of this case a declaratory order is less than appropriate relief. It is not effective redress. And the provision of existing law that is proviso (b) of section 15 (1) of the Government Proceedings Act, that would compel this court to avail only such relief is not in conformity with the Constitution. I would therefore construe it in such a manner by qualifying the proviso (b) to section 15 of the Government Proceeding Act not to be applicable to the case at hand. I therefore order the defendant and its servants to give vacant possession of the suit property to the plaintiff, not later that thirty days from the date of pronouncement of this judgment, failing which eviction shall issue…”.

The judge therefore stated that what he was doing was not to interpret the Constitution as this was the preserve of the Constitutional court under article 137 (1) but rather that he was simply construing the existing law with such modifications, adaptations, qualifications and exceptions so as to bring it into conformity with the Constitution which he was rightly empowered to do under article 273.

This case went on appeal as Ag V Osotraco Ltd Civil Appeal No.32 of 2002 and the Court of Appeal in a revolutionary style upheld the judge’s orders. Mr. Mike Chibita, the learned Principal State Attorney at the appeal pressed court with the argument that by doing what he did, the trial judge had ventured into territory which was exclusive to the Constitutional Court. The leading judgment was given by Mpagi Bahigeine JA. To her mind the trial judge was right in his contention that he was not in fact interpreting the Constitution but simply reading the Government Proceedings Act to bring it in conformity with the Constitution which power he had by virtue of article 273. The Justice noted that

“since the 1995 Constitution, the rights, powers and immunities of the state are not immutable anymore. Article 20 (2) enjoins every body including Government agencies to protect and respect individual fundamental 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. Article 26 protects the respondent’s right to own property. The Respondent having obtained judgment I clearly entitled to a meaningful form of redress under article 50 as the Judge put it. Since this is not a case of compulsory acquisition in the public interest, the respondent would be entitled to have his property back. The learned judge was moving under article 273 and did not encroach on article 137 a alleged by the appellant. I would thus confirm the Judge’s orders of eviction and costs against the appellant.”

In Pyrali Abdul Kasule Ismail V Adrain Sibo Constitutional Reference No. 1 Of 1997, the Constitutional Court considered the payment of compensation for expropriated properties under the Expropriated Properties Act, 1982 as not satisfying the constitutional conditions of ‘prompt. And ‘effective’ payment under article 26 of the Constitution.

RIGHT TO PRIVACY OF THE PERSON, HOME OR PROPERTY (article 27)

Article 27 secures the right to privacy of the person, home and other property of the individual including correspondence and communication. The right protects against unlawful search, entry and interference with the privacy of an individual and his/her home. Therefore, entry and search without a search warrant will prima-facie amount to a violation of the right to privacy. In the King V Therens [1986] Lrc (Const) 455, the Canadian Supreme Court held that the entry and search of the accused’s house without a search warrant was a violation of his constitutional right to privacy. The Court found that the police entered the dwelling place of the complainant without any reasonable cause to suspect that the offender was in that place. Court also found that fingerprinting of the accused was also an act of violation of his right to privacy as it entailed a search of his body and person.

This right also extends to such things as interference with communication e.g. the intercepting of mail, the tapping of phone calls, accessing bank statements without authority.

In Uganda, concerns about violation of this right have been had in respect of the Leadership Code Act which compels the declaration of the wealth of spouses by public office holders and the Prevention of Terrorism Act, 2002 which allows for the seizure of bank accounts.

THE RIGHT TO A FAIR TRIAL (article 28)

Article 28 guarantees the right to a fair trial. That the individual shall be entitled to a fair speedy and public hearing before an independent and impartial Court. Therefore, there should be no unreasonable delay in the trial. The trial must be in public view to ensure fairness although there are circumstances in which the public may be excluded from the Court for reasons of morality, public order and national security. The tribunal must be independent and impartial in the sense that it is not subject to the authority or control of another person or organ of government and that there is no appearance of a likelihood of bias.

What amounts to a speedy trial however is not the subject of any hard and fast rules. Nevertheless, it appears that socio-economic conditions count much when it comes to its determination. Yet it must be emphasized that article 28 must be seen as a whole such that it is not enough for a trial to be speedy if it is not fair. The Kotido Field Court Martial executions brought this to the limelight. The accused were tried in less than 3 hours sentenced to death and executed shortly thereafter. Many questioned the argument of government that the trial was speedy as required by the Constitution. The question was whether it had been fair as well given the fact that there was no ample time for thorough investigations to be done.

The requirement of a ‘public hearing’ is intended to ensure that the public can oversee the dispensation of justice after all it is dispensed in their name under article 126. This however does not prejudice the right of courts to hold any trial in camera where matters at stake involve national security, the protection of morals or the protection of the litigants. An example is in the TINYEFUZA case of 1997 where the right to information in the hands of the State and the testimony before a parliamentary committee and its use in judicial proceedings before a court was subjected to a hearing in camera. Similarly, trials in the Family and Children Court are usually heard in camera where there are concerns that the child may be adversely affected by a public hearing.

An independent court or tribunal implies that the officers of the court or tribunal should not be the subject of any direction of external influence of another person or organ. It also means that the judges or tribunal members must not be likely to be biased. Accordingly, Judges as a rule of courtesy stand down when they feel that there is a possible source of conflict that may arise. An example was in the trial of the former Chilean dictator Augustino Pinochet in 1999 wherein a Lord of the House of Lords in the United Kingdom was pressed to withdraw from the trial because his wife worked for Amnesty International an organization that was at the forefront of having the dictator tried for his massive crimes against humanity. In Uganda Court of Appeal Justice, Stephen Kavuma has always been the victim of this. He has always been requested to stand down in cases involving contested political issues against the government. This is because he was a former minister in the NRM government, and many allege that his appointment to the Bench was a political appointment.

In Professor Isaac Newton Ojok V Uganda Crim. Appeal No. 33 Of 1991, where the learned trial judge had close connections with the government in power of which the accused was charged with attempting to overthrow by arms, the trial was held not to have been impartial.

Article 28(3) secures several guarantees during the trial of an individual for a criminal offence including:

a) The right to a presumption of innocence. This remains a fundamental principle of criminal law in the common law system. In effect, the individual must not be treated as if he/she was guilty. This principle has already been affirmed with respect to the right to grant of bail.

There is no doubt that the presumption of innocence is the very core of the right to a fair hearing in criminal proceedings. The point has been succinctly put by Dickson CJ in Her Majesty the Queen V Oakes (1986) S.C.R 103 where he stated that ‘the presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the state of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the state proves an accused guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind, it reflects our belief that individuals are decent and law-abiding members of the community until proved otherwise’. In that case, Oakes, the accused was charged with possession of narcotic contrary to the Narcotic control Act. He was subsequently convicted of possession of a narcotic. Section 8 of the Act provided that where the court finds an individual in the possession of a narcotic, then it must presume that it was in possession for the purpose of trafficking. The accused to disprove that he was in possession for the purpose of trafficking. Section 8 violated the right to presumption of innocence.

This fundamental right and belief are underscored by Article 28 (3) (a) of the 1995 Constitution which provides that every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty. Unfortunately the same article has a claw-back clause in article 28 (4) (a) to the effect that nothing done under the authority of any law shall be held to be inconsistent with paragraph (a) above to the extent that the law in question impose upon any person charged with a criminal offence, the burden of proving particular facts. This presumption has always been recognized by case law. The 1962, 1966 and 1967 Constitutions had similar safeguards as well. In the old case of Woolmington V Dpp (1935) AC 642, it was stated that ‘no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained’. This case has always been cited with approval in criminal trials.

Uganda witnessed a number of laws where the onus was reversed and placed on the accused.

By way of example the following statutes can be mentioned:

a) Under the Fire Arms Act, 1970, Section 39 (1) was to the effect that ‘in the prosecution under the provisions of this Act the burden of proof that any accused person is entitled to purchase, acquire or have in possession any fire arm or ammunition by virtue of any certificate or permit or by virtue of any exemption shall lie on the accused person”

b) The Penal Code Act was also amended in 1984 introducing section 28 on terrorism. Subsection (4) of that section provided that ‘without prejudice to the right to adduce evidence in rebuttal, any person who imports, sells, distributes, manufacturers or is in possession of any fire arm or ammunition without a valid licence or reasonable excuse shall be deemed to be engaged in acts of terrorism’. Thus, if found in possession of a firearm or ammunition, the onus was on the accused to prove that the possession was lawful and that he was not engaged in any acts of terrorism.

However, article 28 (4) (a) raises Constitutional issues. Article 44 (c) of the 1995 Constitution states the right to a fair hearing to be a non-derogable right ‘notwithstanding anything in this Constitution’. If the right to be presumed innocent until the contrary is proven is to be taken to be a fundamental aspect of the right to a fair trial then no doubt article 28 (4) (a) stands to be challenged to the extent that it places a reverse onus on the accused. And to the extent that it impairs a fundamental non-derogable right then not withstanding any provision (i.e. article 28 (4) (a)), the right to be presumed innocent as part of a right to a fair hearing must prevail.

c) The right to be informed in the language that the individual understands of the offence for which he/she is being tried.

This right is often interrelated with that in paragraph (d) of being afforded an interpreter where the individual does not understand the language used at the trial.

In the case of Andrea V R [1970] EA 26, the accused was a Mozambican who only understood Portuguese and his native Mozambican language. This trial was conducted in English on Appeal the EACA held that there had been a violation of the accused’s right to an interpreter during his trial.

c) The right to legal representation and facilities for the preparation of the defence in respect of offences whose penalty is one of death sentence or life imprisonment, the right to legal representation is at the expense of the state.

In State V Vermaas (1995), the South African Constitutional Court expressed that 2 years after the 1993 Constitution it had not been demonstrated that the state had put in place facilities to securities to secure the right to legal representation at the expense of the state. On the other hand, the right to be afforded adequate time and facilities for the preparation of defence includes the right to be granted an adjournment for the purposes of security the services of a lawyer or the attendance of one’s advocate.

In Muyimba & Ors V Uganda (1969) Ea 433, the hearing of the trial was in Masaka and the accused’s lawyer who was in Kampala was informed in the morning of the day of the trial and thus could not make it to Court in time. The Magistrate refused to adjourn the case when Muyimba asked for an adjournment. This was held to be a violation of the accused’s right to legal representation.

The right to adequate time and facilities for preparation of one’s legal defence has been considered to include the right to seek for an adjournment to retain counsel where the previous one has withdrawn from handling the case. In Kataryeba Zackary V Uganda (1996) HCB 36, the lawyer of the accused’s abandoned the case and they applied for an adjournment to obtain the services of another lawyer which was refused by the Magistrate. The High Court Judge held that the refusal to grant adjournment amounted to a violation of the right to legal representation as in article 28(39(c).

Refer to the Advocates (Amendment) Act 2002 which requires advocates to avail free legal assistance as part of their practice.

d) The right to equality of arms in the sense of obtaining attendance and examination of witnesses.

e) Clause 8 secures the right of an individual against trial in absentia therefore the individual must be tried in his or her presence unless he/she has become a menace (threat). This provision was tested in the case of Esau Namanda & Ors V Ug [1991] Crim App. The 5 accused were charged with intermediary with the property of the deceased person. On the first day of the trial, only one of the accused was produced in Court and when the charge was read to him, he pleaded guilty. This was taken by Court as the plea of guilt for all the 5 including the 4 absent. The 4 appealed against their conviction. The High Court held that in convicting the 4 appellants on the plea of government when they had not been produced before Court, this was a violation of the right of the individual to be tried in his presence.

Similarly, in KATARYEBA’s case, where the trial magistrate had purported t enter plea of guilty in respect of the one accused who had been arraigned before him and the 3 others charged jointly but who had not been brought to court that day, it was held by the High Court on appeal that there had been a failure on the part of the trial magistrate to appraise himself with the provisions of article 28 95) which entitles the accused to be present at his trial save for the cases where his conduct renders his presence impracticable.

Clause 6 provides for the right of the individual to the copy of the proceedings of the trial.

Clause 7 states that one shall not be tried for an offence which did not constitute an offence at such time. This provision is meant to ensure that acts lawfully done at the time when they were lawful must not be retrospectively criminalized.

Clause 8 requires that one should be punished in the way which such offence would have been punished under a double jeopardy ie punished twice for the same offence.

Clause 10 states that no person shall be tried for a criminal offence if the person shows that he/she has been pardoned. In criminal law proceedings therefore, this is usually a valid plea to charges if it can be established with positive evidence.

Clause 11 secures the right for self-incrimination by providing for non -compellable witnesses. The accused has a right to keep silent during the course of trial. This is the reason why in criminal trials, the accused and his or her spouse are competent but not compellable witnesses. (See Rex V Amkeyo )

Clause 12 states that for a person to be punished for any criminal offence, such an offence must be clearly defined by law and the penalty prescribed. This provision was exemplified in the Salvatori Abuki V Ag. In that case, the argument by the Petitioner was that the Witchcraft Act under which witchcraft was sought to be criminalized and under which the accused was sought to be banished from the community did not define in clear terms the type of conduct that was prescribed as being criminal. The Learned Judges accepted the argument and declared the Act unconstitutional. Elsewhere in Zimbabwe in Mark Chavunduka & Anor V Minister for Home Affairs Case No. 36/2000, the law on false news has been held to be so vague as to be clear on which particular conduct or words constitute the offence including such words as fear, alarm, false etc.

PROTECTION OF FREEDOM OF CONSCIENCE, EXPRESSION, MOVEMENT, RELIGION, ASSEMBLY AND ASSOCIATION (article 29)

Article 29 secures a whole range of freedom including

i) Freedom of thought conscience and belief under clause 1(b).

ii) Freedom of speech and expression including freedom of the press under article 29(1)(a)

iii) Freedom to practice one’s religious belief under article 29(1) (c)

iv) Freedom of Assembly under article 29(1)(d).

v) Freedom of association under article 29(1)(e) and freedom of movement under article 29(2)

The right to freedom of conscience was perhaps brought to the forefront for the first time in the case of John Kyeyune (popularly called the Movement Poster Case) in May 2000. In that case, the accused was charged before the Magistrate Court in Lugazi for tearing the movement Bus poster under offences created by the Referendum Act. The magistrate in dismissing the charge held that the individual was only exercising his freedom of conscience under article 29(1) (b).

The right to freedom of religious belief entails the right to:

a) belong to a particular religious faith

b) protest and manifest that faith through worship and dissemination.

This right to belong and profess must not be subject to compulsion or restriction. In the Big Drug Mart Case, the Canadian parliament created the Lord’s Day Act which prohibited any person carrying out trade and business on a Sunday. The petitioners challenged the Constitutionality of the Act. The Supreme Court in effect stated that the Act compelled observance of the day of rest or worship upon all members of the Canadian Society.

Freedom of religion must however be exercised in a manner consistent with the Constitution.

In the enjoyment of one’s belief, one may not therefore violate his or indeed another person’s constitutionally guaranteed rights. Accordingly, in Re An Infant [1996] Chlrd 429, Jehovah’s witness parents refused their 3 year old sons to get an urgent blood transfusion to save his life. The hospital went brought for violation of religious worship. Court stated that the right to manifest one’s religion and belief is not absolute and that the parental right to practice one’s religion does not extend to impairing the life or health of a child.

In Uganda, this right has also been the subject of litigation. It was the subject of a petition in the case of Sharon Dimanche & 2ors V the Makerere University Constitutional Cause No. 1 Of 2003. In that case, the petitioners petitioned the Constitutional court contending that the policy of Makerere University, a public institution of scheduling mandatory lectures, tests and examinations on Saturdays contravened their rights as Seventh Day Adventist students to practice their faith as guaranteed under article 29 (1) (c) of the Constitution. They further contended that the policy placed an unconstitutional burden on them by virtue of their faith as well as undermining their right to education as guaranteed under article 30. The Constitutional Court unanimously dismissed the petition and found that no violation of the petitioner’s rights was committed by the University. The Court came to this conclusion because:

a) The freedom to practice one’s religion is not absolute and that in any case, the petitioner’s rights had to be exercised bearing in mind the secular character of Uganda as a state and the Respondent as a university.

b) The very essence of the right to practice one’s religious beliefs by implication means to practice it without compulsion or coercion and discrimination. The petitioners were not compelled to participate in academic programs scheduled on the Sabbath and so to give up their religious convictions or to be prevented to believe in the dictates of their faith to which they subscribe. In fact, to the contrary, the University policy applied to all students admitted to its educational programs irrespective of their religious convictions.

c) It was against the background of secularism and the essence of religious freedom being a non-absolute right that the Constitutionality of the University policy had to be tested. If that was analyzed, the ‘purpose and effect’ of the policy had to be scrutinized. The petitioners had never been compelled or discriminated against. As such they could not allege that a Constitutional burden had been placed on them by the University policy.

d) The right to education was also not an absolute right. It was necessary t separate the right from the institution from which education was sought. University education should not, the Justices noted, be synonymous with Makerere University. That the petitioners if feeling inconvenienced by this policy had a range of tertiary institutions to choose from.

But in a shift from this position, in Ronald Reagan Okumu & Anor V Ag Miscellaneous Application No. 63/2003 (Hc) (Unreported), the High Court held that the refusal by the army commander of Gulu military barracks to release the body of one Peter Oloya violated the ‘cultural rights of the relatives to accord him a decent burial as enshrined in article 37 of the Constitution’

Freedom of speech and expression on the other hand entails the right to disseminate views and opinions and the corollary right of the public to be informed. The major concern with freedom of speech and expression is the restrictions that tend to be placed upon it by way of penal provisions such as the law of sedition, publishing false news, promotion of sectarianism as well as administrative measures such as censorship, banning and closure of newspapers. The question has been whether those types of restrictions are permissible under article 43(2) in the sense that they are necessary and justifiable in a free and democratic society.

It appear that this has been well handled in the case of Charles Onyango Obbo & Andrew Mwenda V Ag Const. Appeal No.2 Of 2002, the two petitioners who were journalists in the Monitor newspaper were charged on two counts of publication of false news contrary to section 50 of the Penal Code. They had run a story which among other had the headline ‘Kabila paid Uganda in Gold, says report’. The particulars of offence had quoted a paragraph of the story that “President Laurent Kabila of the newly named Democratic Republic of the Congo (formerly Zaire) has given a large consignment of gold to the Government of Uganda as payment for services rendered by the latter during the struggle against the former military dictator, the late Mobutu Sese Seko”. The petitioners claimed that section 50 was inconsistent with articles 29 (1) (a) and (b), 40 (2) and 43 (2) (c) of the Constitution.

d) the legislative objective which the limitation is designed to promote must be sufficiently important to warrant overriding a fundamental right

e) the measures designed to meet the objectives must be rationally connected to it and not arbitrary, unfair or based on irrational considerations.

f) The means used to impair the right or freedom must be no more than necessary to accomplish the objective.

He was satisfied that Section 50 of the Penal Code Act making publication of false news a criminal offence did not satisfy that test. In his view there were two interests to be balanced here. The first was the freedom and self-fulfillment from the exercise of the freedom of expression or from receiving information and ideas from those who impart it. The second is that the country as a democratic society derives the benefit of promoting democratic governance. He added however that although no doubt there was a non-quantifiable benefit of protecting the public, the Section to pass the test must have achieved the purpose of protecting them against real or actual danger and not merely speculative or conjectural danger of alarm or disturbance of the peace. He concluded that the second benefit was so much outweighed that it could not in any sense justify overriding the first interest of access to information.

He in showing that Section 50 used a measure which was not proportional at all to its apparent objective, he noted that the section in fact prevented the publication of expressions likely to cause public fear , alarm or disturbance of peace even if it does not cause any such mischief. That, accordingly, to criminalize the publication in this way was akin to killing a mosquito with a sledgehammer. He criticized an analogy that Berko JA had given in the court below that the essence of criminal law is that freedom of expression and speech should not be invoked to protect a person ‘who falsely shouts fire, fire in a theatre and causing panic’. In his view, such a ‘fire alarm’ had to in fact cause panic and that panic had to prejudice the public interest. He also adverted to the fact that it would require with some sense of divine pre-science a person to measure what impact such a statement would have on the public. It was enough if it did not in fact cause any panic but was likely to cause it. This was an unacceptable provision. He also noted the unusual burden of proof of the section in that the prosecution did not have to prove guilty knowledge but instead to avoid liability one had to take provable measures to verify the accuracy of every statement, rumour or report before publishing it. He also considered the impossibility of calculating the public reaction that a certain publication will cause beforehand. He concluded that such a measure of restriction is not proportional to the mischief intended to be cured and could thus not be justifiable in a free and democratic society. He, as well as court held that Section 50 of the Penal Code Act was inconsistent with article 29 (1) (a) and thus void. Court concluded that where a law places a limitation on a guaranteed right, it can only be valid if it passes the test laid down by Article 43

Countless examples are always given as to the abuse of the right of freedom to express one’s self. These include:

i) On 2^nd June 2006, James Tumusiime, the Managing Editor of The Weekly Observer and Ibrahim Semujju Nganda, the Political Editor were summoned to court to answer charges of promoting sectarianism after a story they ran in which the FDC alleged that the arrest of the FDC leader, Dr. Besigye and his eventual court martial trial was a conspiracy by the President and top military henchmen of his to prosecute him on ethnic grounds. The prosecution contended that the story was intended to promote ill-will against those implicated.

ii) On March 9^th, 2006, the Uganda Correspondent for the International News Magazine, Blake Lambert was arbitrarily declared persona non grata and hastily expelled from Uganda. The State refused to renew his visa and media accreditation. He later said they did not provide him with any reasons. Robert Kabushenga the Director of the Media Center in defence of the actions stated that Blake’s work was biased, false and prejudicial to Uganda’s foreign interests. He did not labour to show which particular incidents pointed to this allegation. The Media Center also reduced the accreditation of BBC Correspondent Will Ross from one year to 4 months. The reasons have never been known to date.

iii) On the night of Saturday 6^th May 2006, unknown persons defaced a Daily Monitor billboard which had captured the co-called black mambas who had staged a siege at the High Court in military uniform, yet they had then been disguised as policemen. The MD of the newspaper said that the Principal Town Clerk had earlier contacted him informing him that he had a directive from above to remove the billboard immediately. The police had also been mounting pressure on the MD to remove the same.

iv) In February 2006, the police raided Choice FM in Gulu and arrested the Program Manager holding him over night without charge. The accusation this time was that the station posed a security threat after a hotly charged talk show featuring opposition candidate for the District Chairman seat Norbert Mao and the incumbent NRM candidate Colonel Walter Ochola.

v) On February 1^st, 2006, the army raided Unity FM in Lira and arrested the Station Manager and other journalists after they made remarks warning people about meningitis in Moroto and reporting that people from Moroto were being brought in to boost numbers at a forthcoming NRM presidential campaign rally.

vi) On March 13^th, 2006 the police once again raided Choice FM in Gulu and this time closed it. They presented a letter from the Broadcasting Council ordering the suspension of broadcasts. The letter stated that their programs and in particular one aired on February 28^th was prejudicial to State security. The letter also alleged that the Station did not have a licence. The News Editor however noted that they had a receipt from the Council itself for renewal of its broadcasting licence dated March 3^rd, 2006.

vii) On March 21^st, 2006, the police raided Open Gate FM in Mbale and arrested the Program Director and a talk show host and picked up computers for 2 days. It was closed allegedly because of f fracas that had ensued at the station between 2 ministers and MP Nandala Mafabi.

viii) Further the Online edition of the Daily Monitor and its s sister radio KFM were disabled as the February 23^rd, 2006 presidential election results were emerging. They had apparently started giving live updates of the same. The government stated that the paper had usurped the responsibility of the Electoral Commission.

On the other hand, the freedom of assembly and association have since 1995 been revolutionary. This was especially so because the 1995 Constitution put political parties in some kind of abeyance. As a result, the political landscape has been riddled with many petitions. In 2002, the Political Parties and Organisations Act No. 18 of 2002 was passed. It almost immediately suffered legal attack. In Dr. Paul Ssemogerere & 5 Ors V Ag Constitutional Petition No. 5 Of 2002, the provisions of that Act i.e. Section 18 and 19 of the political parties’ law was challenged as being in violation of the provisions of articles 29 (1) (d) and (e) of the Constitution. In finding for the petitioners, the Court reflected on the extent that the impugned provisions of the law infringed the freedoms of assembly and association by rendering the political parties ‘non-functional’ and ‘inoperative’. The lead judgment of Mpagi-Bahigeine JA noted the following about the operation of political parties:

‘…The essence of a political party as defined by Section 2 of the Act is to be able amongst other things to sponsor or offer a platform to candidates for election to a political office and participation in the governance of the country at any level…All these essential attributes of political parties are exactly what the restrictions under Sections 18 and 19 target by prohibiting them from sponsoring or offering a platform for or against a candidate in Presidential or Parliamentary elections, use of symbols, slogans, colour, name identifying any political party…for the purpose of campaigning for or against a candidate, opening offices below national level, holding public meetings and not to hold more than one national conference in a year’. Accordingly, Court was satisfied that the provisions above which rendered political parties inactive in effect created a defacto one party state and in effect continued to foster the monopolization of politics by the Movement political system. The ultimate result was that political parties were rendered non-functional and, in the process, the essential freedoms of assembly and association were violated. According to the Court, ‘the freedoms to assemble and associate…do not only concern the right to form a political party but also guarantee the right of such a party once formed to carry on its political activities freely.’ The Court was thus satisfied that the said provisions of the Act were not justifiable limitations on the inherent rights of the petitioners because they were not acceptable in a free and democratic society.

In 2005, the right to peaceful assembly appeared to have been grossly abused. The Minister of Internal Affairs banned all demonstrations and assemblies connected to the treason trial of the FDC President. Ugly occurrences were also witnessed including the dispersal of the Buganda kingdom loyalists on 11^th November 2005 and the dispersal of Makerere University students on that day in which one student lost his life.

Similarly, on 20^th February 2006 amidst election campaigns, a rally at Lugogo which the FDC President was scheduled to attend and address was dispersed violently. The reason given was that the police had feared that the public were blocking a public highway. This has always been the fact that the Police usually requires its permission for citizens to assemble. They cannot point to a particular provision under which this is required. All the citizens are required to do is to inform the Police and seek protection.

Similarly, in the 2006 Presidential and Parliamentary Elections, 2006 it was alleged that many gross incidents affecting the right of association were witnessed.

The right to freedom of movement entailed in article 29 (2) includes the right to a passport or other travel document. In Oliseh Agbakoba V The Director Of State Security Services & Anor (19960 1 CHRLD 89, a Nigerian High Court construed the words in a passport to the effect that ‘This passport remains the property of the Government…and can be withdrawn at any time’ as being contrary to and as infringing the right to freedom of movement. The right to freedom of movement was also held to have been violated in Unity Dow V Ag (1992) where the local citizenship laws and immigration policies discriminated against and placed severe restrictions on the capacity of women to confer citizenship to their spouses or have their children endorsed on their passports.

It has also been held that the restriction of an individual to a particular part of the country e.g. Karamoja constitutes not only an infringement of his right to personal liberty but it also infringes his right to freedom of movement. (See Grace Stuart Ibingira & Ors V Uganda (1966) EA 308). In fact, for the avoidance of such doubt, article 29 (2) provides that every Ugandan has a right to move freely throughout Uganda and to reside and settle in any part of Uganda’.

THE RIGHT TO EDUCATION (article 30)

This right has never been provided for by previous Constitutions. As earlier seen in other jurisdictions, it is so fundamentally regarded as being important that its deprivation has been related to deprivation of the right to life. This right is further buttressed in article 34 (2) as a right of a child to have basic education and this is the responsibility of the State and the parents of the child. In Krishnan V State of Andhra Pradesh (1993) it was held in India that education must be seen as part and parcel of the right to life since its very purpose is that it tends to lend dignity to an individual.

It appears however, that the right to education does not mean the right to attend the most popular school or University in the country. In the case of Sharon Dimanche & 2ors V the Makerere University Constitutional Cause No. 1 of 2003. In that case, the petitioners petitioned the Constitutional court contending that the policy of Makerere University, a public institution of scheduling mandatory lectures, tests and examinations on Saturdays contravened their rights as Seventh Day Adventist students to practice their faith as guaranteed under article 29 (1) (c) of the Constitution. They further contended that the policy placed an unconstitutional burden on them by virtue of their faith as well as undermining their right to education as guaranteed under article 30. The Constitutional Court unanimously dismissed the petition and found that no violation of the petitioner’s rights was committed by the University. The Court was convinced that the right to education was not an absolute right. It was also necessary to separate the right from the institution from which education was sought. University education should not, the Justices noted, be synonymous with Makerere University. That the petitioners if feeling inconvenienced by this policy had a range of tertiary institutions to choose from which suited their beliefs and religious inclination.

THE RIGHT TO A FAMILY (article 31)

Under this, men and women of 18 years and above have the right to marry and to find a family and are entitled to equal rights in marriage, during marriage and at its dissolution. It also provides that marriage shall be entered into with the free consent of the man and woman intending to marry.

In Uganda, the article has not been actively litigated. However, in Buganda, the famous ‘Nakku’ tradition has suffered the blunt of this accusation. Under it the Kabaka is entitled to have a 14-year-old as a ceremonial wife. Women activists rose up is arms against such tradition which to them meant that whoever had been chosen as ‘Nakku’ would then not be able to get married to any other person and therefore would not be able to found a family in violation of her rights under article 31.

[Refer also to Maliam Adekur & Anor V James Opaja & Anor Constitutional Petition No. 2 of 1997 where the custom of wife inheritance in Paliisa was subjected to a constitutional petition as going against the right to consent to marriage freely under article 31 (3)]

See also Best Kemigisha V Mable Komuntale & Anor Civil Suit No. 5 of 1998. Whereas in this case the trail court opted to deal with the case before it as one of repugnancy under Section 16 of the Judicature Act, 1996, it could well have held that the Toro customs which precluded a widow to inherit her deceased husband’s property because her husband was the Omukama to be in violation of article 31 (2).

RIGHTS OF WOMEN (article 32 and 33)

This right is traced through right from article 21 which prohibits discrimination based on social standing including gender. Until the 1995 Constitution, women were the subject of gross human rights violation and the law did not have any protection meaningfully given to them. In the 1995 Constitution, the rights of women are given full effect for instance by affirmative action being provided for under article 32 (1) in which the State is enjoined to ensure that affirmative action is given to persons or groups marginalized on grounds of gender among other things.

Article 33 then gives a wide range of women’s rights. Notably, article 33 (6) prohibits all customs, cultures, traditions and laws which are against the welfare, dignity or interests of women. The article in general enjoins the State to ensure that women are treated in a dignified manner taking into account their unique statues and their maternal functions in society. To this extent, they must be given equal opportunities with men in all spheres of life, political, economic, social or otherwise.

Courts in the Commonwealth have been very active in ensuring that women’s rights are respected to the letter. For instance:

i) Striking down and declaring as unconstitutional Botswana laws and practice which deprived women of the capacity to confer citizenship to their husbands and children (Unity Dow V Ag in this case, an American husband)

ii) Tanzanian courts declared as discriminatory the custom which allowed a woman to inherit her father’s land but not to dispose it. It was considered that this custom was self-defeating. (Ephraim V Pastory (1990) LRC (Const) 757)

iii) A policy of precluding the admission of women to its bars unless accompanied was declared discriminatory in Zambia (Longwe V Intercontinental Hotels)

iv) In India, the courts declared as discriminatory the penal laws and provisions on adultery which did not allow a wife to recover compensation against the co-adulterer while a husband was allowed to so recover against a man committing adultery with his wife (Devathi V Union of India (1989) LRC (Const) 628) Compare this with the Ugandan Penal Code Act Section 150 A (2)

v) In Botswana, the courts declared a policy of an educational college in expelling girl students who got pregnant while still pursuing their education as being discriminatory (Students Representative Council of Molepolole College of Education V Ag (1995) 3 LRC 447)

THE RIGHT OF ACCESS TO INFORMATION (article 41)

This right was exemplified in the case of Greenwatch (U) Ltd V Ag & Anor. HCCS 139/2001 (Unreported). In that case, Green Watch in its application claimed that it had a right of access to the Power Purchase Agreement (PPA) that pertained to the proposed construction of the hydro-electric power dam at Bujagali. In response, the Respondents raised a number of objections regarding the appropriateness of the application seeking access to a document that they contended was already in the applicant’s possession. The High Court was tasked with answering the question as to whether the PPA was a ‘public document’ within the meaning of Section 72 of the Evidence Act. The court addressed what entails the right to information guaranteed by article 41 of the Constitution. This was because the state contended that it had not infringed this right given the fact that it was not a party to the PPA. It was held that:

a) The right under article 41 does only envisage ‘possession’ of the required information and therefore the fact that the state was not party to the PPA did not excuse it from having to avail it. In fact, the State had clearly admitted the existence of the PPA and the fact that the Ministry of Energy and Mineral Development had all the information pertaining to it. According to Egonda-Ntende J, “Article 41 (1) of the Constitution refers to ‘information in possession of the State’…The State does not have to be a party to the agreement…for the agreement to be in possession of the State. What is important here is possession in whatever capacity occurring…This was enough to trigger the application of Article 41 of the Constitution against the Government of Uganda’.

b) As to the Respondent’s contention that the word ‘citizen’ in article 41 only meant natural citizens and not corporate citizens. Court held that a company incorporated in Uganda with all its members being citizens of Uganda qualifies to be a citizen albeit a corporate citizen. If the law had desired to restrict that right to natural citizens, it should have said so. Accordingly, a corporate body qualified as a citizen under article 41 to have access to information in the possession of the state or its organs and agencies. However, the judge held that no evidence had been adduced to the effect that the applicant was a corporate citizen. As such court declined to declare that it was entitled to access to the PPA under article 41.

(Refer also to Major General David Tinyefuza V AG Const. Appeal No.1 of 1997)

This right also formed the subject of litigation in Ag V Chief Editor, Monitor Publications Ltd & Anor Miscellaneous Application No. 675/2003. In that case, the government filed an application before the High Court seeking an injunction against the Monitor Publications Ltd from the publication through serialization of extracts of an interim report of the Constitutional Review Commission. The Respondent’s argument was that an injunction would violate their right to access to information guaranteed under article 41 of the Constitution. The government raised the usual objection in such cases that the continued publication was injurious and prejudicial to the security and sovereignty of the State and would interfere with individual privacy. The Principal Judge noted that the expression ‘the right to privacy of any other person’ applies to other persons other than the Government as contradistinguished with security or sovereignty of the country which clearly applied to the State as opposed to private individuals. The Judge accordingly concluded that the publication could not properly be prohibited on both those two grounds namely privacy and sovereignty. He further rejected the argument of the State that the further publication would infringe the sovereignty of Uganda. He remarked that sovereignty has to do with self- determination or competence by a government to decide for or govern the country without external interference. Court was thus unable to see how publication by a Ugandan newspaper of information in the possession of a government agency could impair Uganda’s sovereignty or independence. However, in the end, the Principal Judge granted the injunction on grounds that there was need for confidentiality when the Commissioners were compiling their report. This they needed to do without the fear of disinformation, misquotations or misreporting.

Legal commentators have seen the grant of this injunction as an excess of judicial activism for it is not seen where exactly the ground of confidentiality fits in with the precise wording under article 41. In fact some have accused the Judge of having imported excess public policy concerns in his decision to the seclusion of the clear provisions of the Constitution.

In Major General David Tinyefuza V Ag Constitutional Petition No. 1 Of 1997, the Petitioner had sought to have certain recorded radio messages admitted into evidence. The State had argued that this admission should not be made since the messages were an ‘official record’ related to affairs of the State and that in light of Section 121 of the Evidence Act, it could not be relied upon except with the ‘permission of the officer at the head of the department concerned’ and that such officer had the discretion to ‘give or withhold such permission as he thinks fit’. The Constitutional Court was tasked with reading this Section and testing it against article 41. It noted that ‘The Constitution has determined that a citizen shall have a right of access to information in State hands. It has determined exceptions in a manner that is inconsistent with the application of section 121 of the Evidence Act. It is no longer the head of department to decide as he thinks fit. That unfettered discretion has been overturned by article 41 of the Constitution’. On appeal, Oder JSC was even more skeptical about the unfettered discretion of the departmental head. To him ‘Section 121 of the Evidence Act gives unquestionable power to the head of department to give or withhold such permission as he thinks fit to a person who desires to produce such a document. He is the sole judge of this matter. He does not have to give a reason or to be accountable to anybody to the exercise of this power. If applied together with the exception in article 41 of the Constitution, it would override a citizen’s right of access to information in the hands of the State which is a fundamental right in Chapter 4 of the Constitution. The head of department could deny a citizen the right of access to information’. Court noted that it is for the Court to determine whether a matter falls in the exceptions in article 41 or not.

Most importantly however, court noted that in terms of information falling within the ambit of article 41, the burden of proof lies on the State to show that such information as is being sought falls within the permitted restrictions. Further Court noted that article 41 does not give categories of information restricted but rather the effect of release of such information. According to Mulenga JSC ‘the exception under article 41 is not directed to types or categories of information…It is rather concerned with the effect of release of the information. The citizen is entitled to access ant type of information whether related to national security or national economy as long as its release is not likely to prejudice the security or sovereignty or interfere with the right to privacy of any other person’. This in effect means that the right of access to information exists with regard to information of whatever kind unless the State or its organs can positively show that it falls within the scope of the restrictions allowed by the Constitution.

In this case, although the State squarely failed to offer evidence for the exemption of these recorded messages from the High Command, the Constitutional Court heard this evidence in camera and the Supreme Court regarded this as being proper to avert any likelihood of prejudice. Oder JSC noted that ‘it appears that the mischief feared is in the release of information to the citizen probably with the consequence that such information might be made public prejudicing the security of the State. If the release was to a limited context namely if it was denied to the public and the press but made available to the Court and the parties for the determination of issues between the State and such party, then the prejudice to the security of the State would be averted by exclusion of the public and press and hearing in camera as authorized by article 28 (2) of the Constitution’.

In Zachary Olum & Anor V Ag Constitutional Petition No. 6 Of 1999, the court was concerned with the discretion given to the Speaker of Parliament to grant or reject leave to a Member of Parliament to use proceedings of the House in evidence elsewhere, in this case in a court of law, under the provisions of S 15 of the National Assembly (Powers and Privileges0 Act. In the absence of specific access to information legislation (at that time), Mpagi Bahigeine JA regarded Section 15 of the Act as prescribing a special procedure for accessing information in the possession of Parliament. Treating the discretion given to the Speaker in this Act as being analogous to that of the head of department under the Evidence Act (see Tinyefuza’s case above), the Constitutional Court held that the said provisions of the National Assembly 9Powers and Privileges) Act were clearly inconsistent with article 41 of the Constitution.

From this jurisprudence, the following is discernable:

a) The right to information includes the right to information in possession of the State. It need not be the author of such information.

b) The burden of proof lies with the State to show that the information being sought falls within the restrictions allowed in article 41.

c) The right extends to use such information in a court of law.

d) It is no longer for the Head of Department to have that unfettered discretion as to which information should or should not be accessed.

The Access to Information Act No. 6 of 2005 was passed recently and it is believed that it will help further the intention in article 41. Its short title is ‘An Act to provide for the right of access to information pursuant to article 41 of the Constitution, to prescribe for the classes of information referred to in that article, the procedure for obtaining access to that information and for related matters’. Under Section 2 (1) it is provided that the Act applies to all information and records of government ministries, departments, local governments, statutory corporations and bodies, commissions and other government organs and agencies, unless specifically exempted by this Act. The purposes of the Act are stated in Section 3 as including the promotion of an efficient, effective, transparent and accountable government and to give effect to article 41 of the Constitution, to empower the public to effectively scrutinize and participate in government decisions that affect them.

Section 5 (1) provides that every citizen has a right of access to information and records in the possession of the State or any public body except where the release of the information is likely to prejudice the security (defined in Section 4 as the protection of Uganda against threats such as crime, criminals and attacks by foreign countries) or sovereignty (defined in Section 4 as the supremacy of the State) of the State or interfere with the right to the privacy of any person. Such information is required by virtue of subsection (2) of that Section to be as accurate and up to date as far as is practicable.

Moreover, under Section 6 a person’s right to access to such information shall not be fettered by any reason he gives for requesting it or any belief of the information officer to whom the request is made as to that person’s reasons.

The Act has a number of carve-outs in which case the right to information is qualified. Particularly, under Section 32 an information officer may refuse access to a record if it is likely to prejudice the defence, security or sovereignty of Uganda or is likely to prejudice the international relations of Uganda or would reveal information supplied in confidence by or on behalf of another State or international organization. Whereas the Act represents a future in this area, still there is a great deal of uncertainty as to what for example constitutes national security or sovereignty. There is a widespread belief usually reiterated by army spokesmen that anything to do with military affairs and operations are prejudicial to national security. It remains to be seen how far the courts of law will be willing to allow citizens access to information.

Qn. Examine the provisions of the Access to Information Act No. 6 of 2005 and see how it impacts on the body of case law decided before its enactment.

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