In most countries, the fundamental laws of the land
are contained in one document or a series of documents for which the word
‘Constitution’ is reserved, but in a few countries like the United Kingdom of
Great Britain and Northern Ireland, there is no single document which embraces
all these rules or which can be referred to specifically as the Constitution of
the state. Nevertheless, such countries have Constitutions because the word
‘constitution’ is a legal expression which identifies all the elements of how a
country is organised and governed.[2] The difference between the two is one of form
rather than substance.
It should be noted that the nature of the Constitution
depends on the character of the country for which it is intended to govern.
There are a number of factors which will have a bearing on the growth,
evolution and formulation of a Constitution.
The country’s historical, geographical positions, her social structure, her political, economic development, religious beliefs as well as her racial and tribal composition all play a part in formulation, growth and evolution. If a Constitution is to work, it must fulfil the intended purpose and this can be achieved through informed and guided decisions reached at using tools of interpretation.
Constitutional interpretation or construction is the
process by which meanings are assigned to words in a constitution to enable
legal decisions to be made that are justified by it.[3] There is a question
whether the meanings should be taken from the public meanings shared among the
literate populace, the private meanings used among the drafters and rectifiers
that might not have been widely shared or the public legal meanings of the
terms that were best known by the framers of the Constitution.
In Constitutional interpretation, we must note that
constitutional terms are not empirical objects, so must as ideas, that is,
mental models that do not for the most part have the advantage of some formal
scientific form of being represent able in mathematical or computer formalism
that we can examine externally. In particular, they are ideas that existed in
the minds of persons long dead or are very old to impact our current society,
so we must develop mental models of their mental models “theories of mind”
based on things they read and wrote.
Constitutional controversies are about whether an official Act with authorities by a Constitution has been interpreted rightly in arriving at a decision.
Since a Constitution is a law and a supreme law within
its domain and authorises statutes and other official Acts which have a
contextual expression then Constitutional interpretation is essential.
Article 2(2) of the Constitution of the Republic of
Uganda states that;
If any law
or any custom is inconsistent with any of the provisions of this Constitution,
the Constitution shall prevail, and that other law or custom shall, to the extent
of its inconsistency be void.
Therefore given that all other laws derive their
authority from the Constitution, it must be interpreted with a lot of precision
and caution. In Troop v. Dulles [4] where a decision of the Supreme Court was
reached at and Justice Wallen C.J stated that;
“The
provisions of the Constitution are not time worn adages. They are vital living
principles that authorise and limit government powers in our nation. When the
constitutionality of congress is challenged in court, we must apply these
rules. If we do not, the words of the constitution become a little more than
good advice”
Most legal scholars and jurists recognise several theories and principles in constitutional interpretations, although they may differ on what each includes, there is an overlap among them. Some of the theories that have been advanced include the following:
The
textualist and strict construction approach; this suggests that decisions should
be based on the actual words written in the law if the meaning of the words is
unambiguous. Since a law is a command, then it must mean what it means to the
law giver and if the meaning of the words used in it have changed since it was
issued then the textual analysis must be of the words as understood by the law
giver which for a constitution would be the understanding of the ratifying
convention.
A central argument for the subscribers of textualism and strict construction is that less strict interpretations of the constitution can become a method of legislative activism by judges which they feel is an abuse of judicial power. This concern might be phrased as ‘making the law to say what you think it should say rather than submitting to what it does say.’ This would be a form of judicial usurping the legislative power. The Supreme Court’s power for constitutional review and extension of its interpretation was essentially self assigned in Marbug v. Madison[5]
Originalist
Approach; Originalism is a family of theories central to all of which is the
proposition that the constitution has a fixed and knowable meaning which was
established at the time of its drafting. The theories include; the ‘original
intent’ theory which holds that interpretation of written constitution is
(should be) consistent with what was meant by those who drafted and ratified
it. The ‘original meaning’ theory which is closely related to textualism is the
view that interpretation of the written constitution or law should be based on
what reasonable persons living at the time of its adoption would have declared
the ordinary meaning of the text to be. It is with this view that most
originalists are associated with textualists. It is often asserted that
originalism is synonymous with a textualist and strict constructionalist
approach. In Smith v. United States[6] Justice Scalia differentiates the two
by pointing out that unlike an originalist, a strict constructionalist would
not acknowledge that, ‘He uses a cane’ means ‘He walks with a cane’ because
strictly speaking this is not what ‘He uses a cane’ means. Scalia has asserted
that he is ‘not a strict constructionist and no one ought to be;’ He goes
further calling strict constructionalism a degraded form of textualism that
brings the whole philosophy of interpretation into dispute.
To put the difference more explicit, both schools take the plain meaning of the text as their starting point but have different approaches. For a strict constructionalist, the specific strict reading of a text is the beginning and end of the inquiry. For an originalist however, the text is the beginning of the inquiry and two originalists might reach very different results not only from the strict constructionalist, but from each other [7].
Contextualist
approach; This is also concerned with the text itself to those who wrote the text
but instead of subjective intent, it seeks to examine the broad context in
which the provision at issue was promulgated, arguing that in some important
aspects, respect, the provision can only be understood relative to its context.
This context can be through examining why the
provision is located where it is in the whole document and also focussing on
the broad long history to determine the broadest possible intent. Historical
contextualsim was the main theory of interpretation that the Supreme Court used
resulting in such decisions as in Plessy v. Ferguson where the holding
upheld racial segregation because the broad historical context of the 13th
and 14th amendment did not support the idea that they were intended
to prevent states from separating races. In the case of De Clerk and Suct v. Du Plassis
and Another[8], the Supreme Court of South Africa stated that;
“When
interpreting the constitution and more especially the Bill of Rights, it has to
be done against the backdrop of our repressive history in the human rights
field.”
One main
proponent of contextualism, Chief Justice William Howard Taft, explained that;
“The
language of the constitution cannot be interpreted safely except by reference
to the Common Law and to British institutions as they were when the instrument
was framed and adopted.”
Opponents of contextualism often argue that pure
contextualism outlook prohibits the constitution from adapting to different
culture, technology and social developments.
Pragmatic
approach; This theory is founded on the idea of judge-made law doctrine but goes
further to enlarge the interpretation aspect to be elastic enough to include
broader historical events, practices, usages and political culture. It tends to
focus on how the meaning came into being hence the idea of constitutional
growth and evolution. Chief Justice Tarl Warren exemplified this when he said
the constitution needs to be interpreted in light of the evolving standards of
decency that mark the process of a maturing society. A common criticism to this
approach is that it makes a constitution ‘mean nothing’ because it holds that
it can mean anything. First, the pragmatic view contends that interpreting the
constitution with long out-dated views is often unacceptable as a policy matter
and thus that an evolving interpretation is necessary. In Osotraco Ltd v. AG[9],
where Justice Egonda Ntende said;
“The rationale for the proviso (b) to sec.15 of the Government
proceedings Act lies in the historical relationship between the Crown and the
courts of England in terms of constitutional theory. This constitutional theory
was explained by Lord Diplock in the following words in Jaundoo v. AG of Grenada[10]
‘At the time of hearing a motion in the High Court, an injunction against the
government of Guyana would thus have been an injunction against the Crown. Thus
a court in Her Majesty’s dominion had no jurisdiction to grant. The reason for
this in constitutional theory is that the court exercises its judicial
authority on behalf of the Crown. Accordingly, any orders of the court are
themselves made on behalf of the Crown and it is incongruous that the Crown
should give orders to itself.’ He
continued to say that Article 126 of the Constitution is even clear on the
authority of judicial power and how it is to be exercised. It is definitely not
on behalf of the crown or successors to it. It is states to be derived from the
people and shall be exercised in names of the people and in conformity with the
law, values and aspirations of the people.”
This is in marked contrast with the Constitutional theory that exposes the view that courts examine authority in behalf of the Crown and its successors.
Having discussed the principles of constitutional
interpretation, it is important to discuss the principles followed in the
interpretation of a constitution
The
constitution should be interpreted as a whole
It was settled by the Supreme court of the U.S “that no single provision of the constitution
is to be segregated from the others and to be considered alone but that all
provisions bearing upon a particular subject are to be brought into view and to
be so interpreted as to effect the greater purpose of the instrument [11].”
In the case of Maj.
Gen .David Tinyefuza v A.G [12], court held that the entire constitution
has to be read as an integrated whole and no one particular provision
destroying the other but each sustaining the other. This is the rule of
harmony, rule of completeness and exhaustiveness and the rule of supremacy of
the written constitution. Manyindo D.C.J observed that of the principle as
follows
“The
entire constitution has to be read as an integrated whole and no one particular
provision destroying the other but each sustaining the other. This is the rule
of harmony completeness and exhaustiveness and the rule of paramouncy of the constitution.
On appeal Oder J.S.C expressed the same view in
this way. Another important principle governing interpretation of the
Constitution concerning an issue should be considered all together. The
constitution must be looked at as a whole. Therefore” …the constitution being a
logical whole, each of the provisions is an integral part thereof and it is
therefore logically proper and indeed imperative, to construe one part in the
light of the provisions of the other part” [13]
Indeed all the provisions of the constitution
concerning an issue should be considered together. In doing so, sight must not
be lost of the spirit of our constitution which is the establishment and promotion
of a just and free society.
Therefore in law, the constitution as a wholesome
legal document and all provisions must be regarded as constituting it. The
normal logic in this canon is that in order to ascertain the true meaning and
intention of the legislators, all relevant provisions must be considered. It’s
thus dangerous to consider any particular article in isolation of all others
and any court which tries to do this is bound to get an inconsistent conclusion.
[14]. Thus decisions are to be based on analysis
of the structures the law constituted and how they are apparently intended to
function as a coherent, harmonious system for no one can properly understand a
part until he has read the whole[15]. It
would seem this canon embodies practically all the theoretical temperaments.
The
Meaningful and Effective rule of interpretation
Where the language of the constitution is imprecise or
ambiguous, then liberal, flexible and purposive interpretation must be given to
cure the ambiguity.
The rationale for this is that the Constitution is not
an ordinary statute capable of amendment as and when legislators choose. In
Salvatori Abuki v A.G[16] Okello J held that “if the purpose of the
statute infringes a right guaranteed by the constitution, that impugned statute
is also declared unconstitutional”[17] .In R v Big Drug Mart ltd the
supreme court stated that “the interpretation should be a generous one rather
than a legalistic one aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the charter’s protection’’.[18]Thus
the courts should construe the constitution “not in narrow and legalistic way
but broadly and purposively so as to give effect to its spirit and this is
particularly true of provisions which are concerned with the protection of
constitutional rights.[19].The generous construction means that courts
“must interpret the constitution in such a way as not to whittle down any of
the rights of freedom unless by very clear and unambiguous words such
interpretation is compelling”[20].
Thus to give this flexible, purposive and
interpretation without having to amend the constitution, the meaning of a
phrase or term to accord it with the legislative effect. This was applied with
equal force to the right of life as protected under the Constitution of Uganda
case Salvatori Abuki v A.G[21].In this case the petitioners were banished
from their homes for 10years after serving a prison sentence for contravention
of the Witchcraft Act. The Constitutional Court struck down the Act as
being unconstitutional and inconsistent with the constitution which guaranteed
citizens from cruel, inhuman or degrading treatment. Court took judicial notice
of the fact that most people in Uganda live in rural areas and survive on land.
Court considered that banishment provisions denied the petitioners access to
land and that such a person would be rendered a destitute upon leaving prison.
The constitution permits a broader purposive approach by providing in article
126 that “Judicial power is derived from
the people and shall be exercised by the courts established under this
constitution in the name of the people and in conformity with the law and with
the values, norms and aspirations of the people”.
Narrow
Construction to be preferred in case of derogation from a guaranteed right
It is not in doubt that save for the rights mentioned
in article 44 which are stated to be non – degradable, the rest can be limited.
But the power to do so is not to be arbitrary exercised by courts. Indeed under
Article 43, it stated that in the enjoyment of the rights and freedoms
prescribed in this chapter, no person shall prejudice the fundamental or other
human rights and freedoms of others or the public interest. This ordinarily
means that a victim of infringement has to do is to plead that his right has
been violated unreasonably. Once he does this, the burden shifts to the alleged
infringer to prove that this was in the circumstances reasonable and justified.
In Charles Onyango Obbo & Andrew Mwenda v A.G[22],
the two petitioning journalists were charged with publication of false news
contrary to section 50 of the Penal Code Act. Justice Mulenga espoused the fact
that the protection of guaranteed rights is the primary objective of the
constitution and the limitation of their enjoyment is an exception to their
protection and is a secondary objective. Although the constitution provides for
both, it is obvious that the primary objective must be dominant. It can only be
overridden in exceptional circumstances that give rise to that secondary
objective. He stated that the criteria to be satisfied includes
(a) the legislative objective which the
limitation is designed to promote
(b) the measures designed to meet the objective must
be rationally connected to it and not arbitrary unfair or based on irrational
considerations
(c) the means used to impair the right or
freedom must be no more than necessary to accomplish the objective. In his
observation there were two interests to be balanced. The freedom of expression
and that of the country as a democratic society let alone protection of the
public. In the instant case, the derogation of the petitioner’s rights didn’t
fulfil the three canons since such deprivation could only be invoked in public
interest if there was real danger and not merely speculative or conjectural
danger or alarm. Thus in limiting this rights, court further took observance of
the presuppose existence of universal democratic principles to which every
society adheres. While there may be variations in application the democratic
values and principles remain the same. Therefore for any legislation which
seeks to limit rights in Uganda is not valid under the constitution unless it
is in accordance with those universal principles
The preamble
and the national objectives and directives of the state must when necessary be
taken into account to supply the intention of the framers.
Critically, this must be done without violating the
meanings of the words used. The simple rationale to this canon is that the rights
granted by the constitution do not exist in a vacuum, and are not an end in
themselves. They are granted upon a given background and it would be lethal for
any court to interpret the provisions in total segregation of the preamble and
the directive principles. In Uganda, the basic importance of this was stated by
Egonda Ntende J. in Tinyenfuza v. AG[23]
wherein he stated that;
“The binding
values in this constitutional dispensation are clearly set forth in the
preamble. These are unity, peace, equality, democracy, freedom, social justice
and progress. In order to ensure that all citizens, organs and agencies of the
state never lose sight of those values and are firmly guided by these values in
all our actions, a statement of National objectives and Directives and state
policy was set forth. The first paragraph states, the following objectives and
principles shall hide all organs of the state...and persons applying or
interpreting this constitution or any other law...for the establishment and
promotion of a just, free and democratic society. That ought to be our first
canon of construction of this constitution. It provides an immediate break or
departure with past rules of constitutional construction.”
This is further given life by Article 126 which
recognises that judicial power is recognised by the courts in accordance with
the constitution and in conformity with the law and with values, norms and
aspirations of the people It was held by Kanyeihamba JSC, in AG v.
Major Gen David Tinyefunza[24] that;
“It is therefore
important to know and appreciate the historical and constitutional background
to the Uganda constitution and the manner in which it carefully demarcated
responsibilities and functions among the various institutions of the state to
given sets of facts and circumstances.”
Oder JSC, also shared a similar view and added that
the preamble and the directives must always be born in mind and noted that the
preamble refers to the struggle of the people of Uganda against the forces of
tyranny, oppression and exploitation. The same was done by the Supreme Court of
South Africa in De Clerk ans Suct v. Du Plessis and Another[25].
Where words
are clear and unambiguous, they must be given their plain, ordinary and natural
meaning.
Such language must be given its common and ordinary
sense which means that they must be given the natural sense which they bore
before the Constitution came into force. In Carnies
book on Statute Law (6th
Ed) 66, wherein the learned author stated that the cardinal rule of
construction of Acts of Parliament is that it should be construed according to
the situation expressed in the Acts themselves.
The tribunal that has to construe an Act of the
Legislature or indeed any other document has to determine the intention as
expressed by the words. If the words of the statute are themselves precise and
unambiguous, then more can be necessary than to expound those words in their
ordinary and natural sense. The words themselves do in such a case best declare
the intention of the law giver. Where the language of the Act is clear and
explicit, we must give effect to it whatever may be the consequence for in that
case the words of the statute speak the intention of the Legislature.
The Sui
Generis Rule;
The word ‘sui generis’ means ‘in a class of its own’.
The Constitution stands on a very different footing from other legislation even
though in fact the principles which govern other legislation for the most part
(but not always) also govern the interpretation of the constitution. It is the
only reason why all other laws are subjected to it and why they are declared
null and void to the extent that they are inconsistent with it. Ref. Article
2(2) of the Constitution. It is also the reason why the language used is much
broader and encompassing than that used by all other statutes. It is intended
to cover rights and freedoms for all people without discrimination and because
it is made for present generations and those unborn.
The
Constitution must be interpreted as a living document;
This canon enjoins the courts to interpret the
constitution having in mind present day circumstances. It also means that it is
meant to cater for both the present generation and those unborn. In Unity
Dow v. AG[26] it was remarked that;
“The
Constitution is the supreme law of the land and is meant to serve not only this
generation but generations yet unborn. It cannot allow to be a lifeless museum
piece. On the other hand the courts must breathe life into it as occasion may
arise to assure the healthy growth of the state through it. We must not shy
away from the basic fact that while a particular construction of a
constitutional provision may be able to meet the designs of the society of a
certain age...it is the primary duty of judges to make the constitution grow
and develop in order to meet the just demands and aspirations of an ever
developing society which is part of the wider society governed by acceptable
concepts of human dignity.”
This is meant to imply that the Constitution should be
able to serve for a long time while accommodating the new changes the world has
to offer without derogating from the original framers intent. This can further
be witnessed in Hunter v. Southern Inc[27] where Dickson said;
“A constitution
is drafted with an eye to the future.”
A Constitution must be capable of growth and
development over time to meet social, political and historical realities often
unimagined by its framers. However, it must be noted that the constitution
should move with times steadily and not to be destroyed by times.
Fundamental
rights are inherent and not granted by the state;
Fundamental human rights are not gifts from the state[28].
As Egonda Ntende J explained that this provision by stating that these
rights are inherent , the constitution is recognizing their inherent existence
to that extent they must be looked at in a different light from other rights
created the law.[29]They inhere in a person by reason of his birth and therefore prior
to the state and law. This means that these rights are not gifts from the
state.[30]Courts
have taken cognizance of principle in the interpretation of the constitution.
Where the
rules of practice are rigidly applied will defeat the process of giving effect
to guaranteed rights they must be reasonably relaxed;
This is perhaps best supported by Article 126 (2)(e)
which requires courts of law to dispense substantive justice without any undue
technicalities. Accordingly, it is the merits or substance of the petition and
not the procedural technicalities that count. In Tinyenfuza v. AG[31] Manyindo DCJ, stated that;
“The case before
us relates to the fundamental rights and freedoms of the individual, which are
enshrined and protected by the constitution. It would be highly improper to
deny him a hearing on technical or procedural grounds. I would even go further
and say that even where the respondent objects to the petition as in this case,
the matter should proceed to trial on the merits unless it does not disclose a
cause of action at all. This court should readily apply the provision of
Article 126 (2)(e) of the constitution of a case like this and administer
substantive justice without undue regard to technicalities.”
This means that the constitution is there not to
condemn but to reconcile. This can also be illustrated in AG v. Susan Kigula and 417 Others[32].
International
Human Rights Convention and treaties may be used in interpretation;
This canon was well summarised in Unity Dow v. AG[33]
wherein the court remarked that although it is common view that
conventions do not confer rights on individuals within the state until
Parliament has legislated them and incorporated within common law, those
conventions may be referred to as an aid to construction of the constitution
and that it would be wrong for the courts to interpret its legislation in a
manner which conflicts with international obligations.
The rationale is that whether ratified or not, these
conventions contain universally recognised human rights too which no civilised
nation can derogate from.
Even when they are yet to be ratified, it is the clear
duty of court to speed up this process by using them in interpretation of this
constitution.
The
harmonisation of conflict principle;
This means that where two constructions are possible
and one is very restrictive of the guaranteed rights and the other permissive
then the latter is to be preferred of the two. In Mtikila v. AG of Tanzania[34]
the court was encountered with conflicting constitutional provisions.
The Tanzanian constitution granted every citizen the right to participate in
the governance of the country and the right not to be compelled to belong to or
subscribe to a political party. However, an amendment was passed which barred
any citizen from running any political office unless they were members and
recognised parties. In holding th these two provisions read together could not
bar independent candidates from standing held that;
“When a
provision of the constitution enacting a fundamental right appears to be in
conflict with another provision of the constitution...the principle of
harmonisation has to be called in aid. The principle holds that the entire
constitution has to be read as an integrated whole and no one provision
destroying the other but each sustaining the other...if the balancing Act
should succeed, the Court is enjoined to give effect toll the contending
provisions. Otherwise the court is enjoined to incline to the realisation of
fundamental rights and may for that purpose disregard the clear words of a
provision if their application would result in gross injustice...These
propositions rest above all on the realisation that it is the fundamental
rights which are fundamental and not the restrictions.”
In conclusion therefore, the principles of
constitutional interpretation were summarised in the case of Charles
Onyango Obbo and Andrew Mujuni Mwenda v. AG Const. Pet. 15 1997 /21/07/2000. Twinomujuni
JA [pp.7-10] enumerated the various principles of constitutional interpretation
referring to a number of cases; Maj. Gen. David Tinyefuza (supra), Zachar
Olum and Anor. V. AG(supra), and Dr. James Rwanyarare and Anor. V. AG (supra). He
asserted that the principles of constitutional interpretation can be summarised
as follows; principles of interpretation applicable to statutory construction
also apply to the construction of constitutional instruments, words must be
given their natural and ordinary meaning where they are not ambiguous, the
instrument being considered must be treated as a whole and all provisions
having bearing on the subject matter in dispute must be considered together s
an integrated whole, provisions relating to the fundamental human rights and
freedoms should be given purposive and generous interpretation in such a way as
to secure maximum enjoyment of rights and freedoms guaranteed and where the
state or any person or authority seeks to do an act or pass any law which
derogates on the enjoyment of fundamental rights and freedoms guaranteed under
Cap 4 of the constitution, the burden is on that person or authority seeking
the derogation to show that the act or law is acceptable within the derogations
permitted under Article 43 of the Constitution.
SELECTED
BIBLIOGRAPHY
- The Constitution of the Republic of Uganda 1995
- Prof. Grace Patrick Mukubwa; The Uganda
Constitution 1995 and Human Rights; Interpretation and enforcement of
Chapter 4, Rights and Freedoms: The Uganda Society Law Review (no.1 of
200)
- Peter Mukidi Walubiri; Uganda Constitution at
crossroads, Uganda Law watch 1998, Kampala
- Doug Linder; Theories of constitutional
interpretation 1997
- A. Scalia; A Matter of Constitutional
Interpretation, Amy Guttman Ed 1997
- Prof. G. W. Kanyeihamba; Constitutional Law and
Governance in Uganda.
- A. F. Mason; The interpretation of the
Constitution in a modern liberal democracy 1996
- Gary Lawson; The Constitutional case against
precedent, 2003
- Keith E. Whittington; Constitutional
interpretation, 2006
- www.wikipedia.en
[1] Prof. G.W. Kanyeihamba; Constitutional Law and
Governance in Uganda.
[2] Ibid 1
[3] www.wikipedia.en
[5] SUS (Cranch 1) 137 (1803)
[6] 508 US 223 (1993)
[8] [1994] 6 BLR 124 at 129
[9] HCCS No.00-CV-CS-1380 of 1986 [2002] UGHC
[10] [1971] AC 972
[15] 3 Coke Rep. 59
[16] Const. petition no. 2 of 1997
[17] A similar provision was held by court in
Zachary Olum & anor v A.G const. petition no.6 of 1999
[18] This was further enunciated in A.G v Mamadou
Jobe (1984) A.C 689
[19] A.G v Whiteman (1991) 2 WLR 1200at 1204
[20] Unity Dow v A.G of Bostwana (1992)
LRC(const) 623 at 668
[21] Const. Petition no. 2 of 1997
[22] Const. appeal no. 2 of 2002
[23] Constitutional Petition No.1 1997
[24] Supra 11
[25] Supra 8
[26] Supra 17
[27] [1985] 11 RLR (4th ) 64
[28] Article 20(1)
[29] Tinyefuza v A.G supra pp.15 of his statement
[30] This was annunciated by Lugakingta J in
Rev.Christopher Mtikila v A.G of Tanzania Civil Case No. 5 of 1993
[31] Supra 12
[32] SC Const. App. No.3 2006
[33] (1992) LRC 623
[34] Civil case no.5 of 1993
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