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Constitutional Law Notes-1-1

Bachelor of Laws (Makerere University)

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CONSTITUTIONAL LAW
FIRST YEAR, SECOND SEMESTER

CONSTITUTIONS IN THE UGANDAN CONTEXT

(I) INTRODUCTION

Uganda's constitutionalism is characterised by both the several instruments and rules of the colonial
period as well as those which have been in existence since independence, viz:

1962 Constitution:
(Embodying semi-federal Executive, Prime Minister, Parliamentary Government and the protection of
basic human rights.)

1966 Interim Constitution:

(Transitional document which followed the abrogation of 1962 Constitution and suspended several
provisions)

1967 Republican Constitution:

(Formally declared Uganda a Republic; has provisions for the Executive President and extensive
curtailments on the Bill of Rights

The Decrees from 1971-1979:

During this period, President Idi Amin was the Constitution, the supreme law of the land having
repealed article 1 of the 1967 Constitution thus rendering the Constitution ‘subordinate’ to him.

1995 Constitution:
(Hybrid Constitution, part - Parliamentary and part Executive with several new provisions)

Several Legal Notices (No.1 of 1971; No.1 of 1979; Nos. 1 & 6 of 1986, all passed to legitimise the
unlawful seizure of power by Amin, UNLF and the NRA)

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(A) REVIEWING THE AFRICAN EXPERIENCE IN CONSTITUTIONALISM

1. Why has Constitutionalism proven a difficult seed to bear fruit in the African context?

The question of Constitutionalism in a broad context of Africa:

Constitutionalism in Africa over the past 50 years has been characterised by a mixture of different
negative and positive events. Against the background of colonialism, which was shared by all African
states, the pattern of constitutional respect has been mixed at best and appalling at worst. At
Independence, most African countries inherited a Constitutional framework that had been designed
mainly on the pattern of the departing colonial power’s understanding of Constitutionalism. In other
words, there was an attempt to recreate Constitutions in the images of the departing colonial powers.

It very soon became obvious that most of these colonial inspired mechanisms of government were
inadequate for the purposes of ensuring a smooth democratic transition for the new African States.
Independent African countries were faced with a principle dilemma of adjusting to these inherited
systems of governance from the colonial States to the concrete conditions on the ground. In this way,
many African governments became involved in experimenting with different forms of governance and
statehood which they believed were most appropriate to our circumstances. They became involved in
a search for autonomy and thereby tried to set home grown or indigenously nurtured constitutional
orders.

With all this came many experiments the most prominent of which was a single party state where by
African leaders argued that their history based on their traditions and the reality of the situation in
which they were, did not permit a luxury of a competitive political situation. That African history had
never recognised competition in politics and that such competition was alien.

Accompanying the concept of a single state was the phenomenon of a strong leader. In the course of
the evolution of a strong leader, the next stage was the establishment of a dictatorial political order;
one in which free elements of expression, free association and free competition were completely
outlawed. In many instances, in many countries, we also had the direct intervention of the armed
forces to take over the reigns of the State.

The mode of governance became one of military dictatorship. In the course of this, the idea of
Constitutionalism was cast in the background. Constitutions were made and abrogated to suit a
particular ruler. Africa became a continent of Constitutions without Constitutionalism. In other words,
constitutional instruments were not worth the paper on which they were written. The nature of
government depended on the particular will of the leader.

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The African Constitutional context was also affected by the demands and the interests of the countries
or powers outside Africa. The last 50 years of our world history were characterised by the cold war
that was a struggle between the system of communism and capitalism, i.e. between Russia and the
USA respectively. The cold war was an intervention of both a direct and indirect nature which was
designed to facilitate the achievement of the interests of countries outside of Africa greatly
undermining constitutions and the development of constitutional law in Africa, e.g. former Zaire where
the C.J.A intervened to remove Patrick Lumumba and replaced him with Mobutu Sseseseko.

The cold war intervened to introduce dictatorial leaders whose interests were more tied to the external
countries than there were to domestic affairs. The cold war further created rivalry and the African
leaders combined it with their own dictatorial tendencies to make Constitutionalism merely one of form
than substance.

2. Why exactly did Constitutionalism have a difficult birth in post colonial Africa?
Africa’s Constitutionalism also confronted problems emerging from both the nature of under-
development which was existent in the continent, combined with the struggle for the underdeveloped
resources by a low level of illiteracy among the broad African populace.

In these conditions, factors like sectarianism, ethnic and religious discrimination and nepotism all
contributed to the failure of the constitutional governments in the African continent.

More specifically, these are factors that have had a bearing on the easy birth of Constitutionalism in
Africa:

(a) The colonial heritage of authoritarian government that continues to create havoc on various forms
of the struggle for constitutional government. Among the problems here, we have:

The ruler is above the law and his authority is unquestionable by any person.

The Judiciary is an arm of government and the notion of independence has little reality in practice.

The legislature generally lacks autonomy from the executive and it is the executive that does its
bidding with the practice of drawing cabinet officials from Parliament as undermining the
independence of the judiciary.

(b) Another factor is the low level of socio economic development; this means that:

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The literacy of voters and leaders is generally very low.

The presence of extraneous influences (other than merit), such as religion, ethnicity etc. that hold way
over political choice.

The guiding principle of government is to make and accumulate as much money and property as
possible for the possible rainy day that will come once power has been lost.

(c) Closely connected to the above, there is lack of true nationalism/patriotism among the different
ascending leaders who have substituted this for selfishness. Even when there is hope for positive
Constitutionalism, the different leaders have done all it takes to stick to power at the expense of
positive Constitutionalism. Many nations in Africa are yet to witness a peaceful hand-over of the
instruments of power to a President elect after a free and fair election. (Kibaki)

(d) The electorate have failed to give a chance to new comers in the political arena including the
President pleading that ‘they are all the same.’ Perhaps this should be blamed unto the elected who
have proved to be the same at the end of the day.

(e) The different Presidents have not been fair to the electorate and instead chosen to manipulate it,
more so the less educated and less knowledgeable by convincing them that the incumbent is the only
one who can manage to lead the country. The Presidents have hidden the truth from the electorate
that if they, the Presidents who drive the security arm can hand over the instruments of power
peacefully, there can’t be any problem with a new President leading the country to even higher
horizons;

(f) Closely connected to the above, because they are less informed or perhaps they fear for their lives,
the electorate have helped keep Presidents in power for long.

(g) Militarism is yet another factor affecting the growth of Constitutionalism in Africa. The issues
involved here are:

How feasible are the bestera models of Constitutionalism / governance adopted at independence and
how well have the forms of constitutional order which African government substituted fared in the
promotion of true Constitutionalism in Africa?

Constitutional revivalism on the African continent:

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Since the late 1980s but especially in the 1990s, there has been a concerted attempt to revive the
spirit of Constitutionalism and to retract constitutional orders, which respond less of the dictates of the
leaders and much more to the demands of the people.1

Around the African continent, the single party states and the military dictatorships have been
progressively challenged and forced to review the structures of governance and the relationship of the
leader and the led and the separation of powers, the rule of law and all the components of
constitutional law.

The constitutional revival era phenomenon has seen old, dictatorial constitutional structures discarded
and attempts made to design new constitutional instruments, which address the past history. Further
more, all attempts have been made to capture the present reality combined with a sense of the
individual history of each particular state in order to promote a new constitutional era.

To what extent is this new constitutional order a departure from that of the past?

The methods by which these new constitutions were made are very different from the old ones. Either
they were a product of a specialist commission or broad assemblies or national conferences where
the citizens of these countries have attempted to identify the different components of statehood which
they are confronting or there have been responses to popular demands for a change of the system of
governance.

The processes seem to have flourished in home-grown conditions of statehood governance. These
processes have also taken place in the context in which the cold war has since changed almost
everything. The international economy has also undergone a change. There is also a bigger
involvement of the people in their political leadership.

The question however remains, ‘Will this Constitutionalism survive and grow to higher levels?’

There are already indications that even the incumbent President (Yoweri Museveni), after a number
of significant achievements towards constitutionalism has succumbed to the failures of his
predecessors by inter alia failing to hand over power peacefully and in this way proved that he is no
different from most African leaders. He ensured the amendment of the Constitution to favour a third

1For example, article 1 of the 1995 Uganda Constitution vests all power in the people who shall exercise their
sovereignty in accordance with the Constitution.

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term in office for him and in his own words said that he is not going anywhere. Ironically, the very
reasons that compelled him to go to the bush are manifesting themselves in his regime.2 In this way,
the legacy left by George Orwell in his book ‘The Animal Farm’ still has its significance even here with
us to date.

2 According to one of President Museveni’s former Ministers Amanya Mushega on Program of ‘Capital Gang’ on
the radio on Saturday, January 21, 2006, the reasons why they waged war on UNLF were because of election
rigging, making State House a business and leaders clinging to power.

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BACKGROUND AND DEFINITIONS

(1) What is constitutional law?

Constitutional law is not only the study of the different organs of government as stipulated in the
constitution and how they operate or the significant roles they play in our day to day life but also covers
the different legislation passed by the Parliament or any other law making body, which legislation must
have a bearing on the constitution. The subject tries to analyse different key players, who have made
history and played significant roles in the destiny of a particular country and how their actions affect
the country. Constitutional law also considers human rights as fundamental, the respect of which is
the cornerstone of any democratic society. In this regard, constitutional law is also concerned with the
different ways a person whose human rights have been violated can get redress through the different
courts of law or quasi- courts. At the end of the day, constitutional law aims at tracing where we are
coming from, what went wrong and finding solutions to making the nation a better place for not only
ourselves but also our posterity (future generations).3 Constitutional law must however be
distinguished from administrative law. While both areas of the law fall under a broader branch of the
law termed ‘public law’ and do actually bear some similarities, they are nevertheless different in form
and substance. Administrative Law concerns itself with the system of rules whereby governmental
powers arise particularly with the fashion in which those powers are overseen / checked

(2) Why do we study constitutional law?

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

(3) What is a Constitution?

3 See the preamble to the 1995 Uganda Constitution.

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

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

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

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

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

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

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

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

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A constitution is a fundamental law because all laws get their authority from it. Each law must be
justified on the basis of some provision in the Constitution. If any law is inconsistent with the
constitution then, that law will be void4.

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

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

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

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

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

1. A defined territory (distinct borders),

2. A people in terms of nationality and sometimes citizenship and

4 See article 2 of the 1995 Constitution.

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3. A system of organised government.

COMMON CHARACTERISTICS OF CONSTITUTIONS

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

Most Constitutions provide for their own supremacy over all authorities and person throughout the
country.5 Thus, in the case of Joseph Tumushabe v. A.G,6 the Constitutional Court held that all
provisions of the Constitution are binding on all authorities in Uganda unless specifically
excepted by the Constitution itself.

The same Constitutions usually incorporate a clause rendering void any other law or custom that is
inconsistent with any of their provisions.7 The fact that the supremacy of the Constitution cannot be
diluted by any means was emphasized in the case of Al Haji Nasser Ntege Sebaggala v. A.G &
Ors8. One of the issues in this case was whether the Constitutional Court still had jurisdiction
as conferred upon it under article 137 of the Constitution to entertain the petition in the face of some
provisions of the Constitution that had been incorporated in the Local Government Act depriving it of
jurisdiction. The Constitutional Court held that it still had jurisdiction to entertain the petition by
virtue of article 137 of the Constitution. The Court could not lose jurisdiction merely because the
Local Government Act had incorporated certain articles of the Constitution. Provisions of the
Constitution cannot be diluted by incorporation because this would derogate from the provisions of
article 2 that guarantees supremacy of the Constitution.

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

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

-The Judiciary is vested with the responsibility of interpreting the constitution but that jurisdiction does
not mean that the judiciary can make its own constitution. The judiciary must exercise its jurisdiction
within the confines of the provisions of the Constitution. All this makes the constitution supreme.

5 For example see article 2(1) of the 1995 Uganda Constitution.

6 Constitutional Petition no. 6/2004
7 Article 2 (2) of the 1995 Uganda Constitution.
8 Constitutional Petition no. 1/99

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However, there are some few countries that don't regard their constitution as supreme law. For
example, in Britain, it is parliament, which is supreme. Parliament there can pass any law, which has
the effect of changing what is currently regarded as a constitutional principal.

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

Perpetuity: A constitution is normally made to last an undefined period of time unless it is stated that
it is an interim one e.g. the 1966 Constitution.
Certainty: The Constitution should be certain. Its provisions should be well known and accessible
such that in times of conflict the courts can fall back on it. That is why they are written. They are
usually contained in a single document or series of documents that are clearly known as the
Constitution.
Flexibility in the provisions for system of amendment: A Constitution must be accommodative of new
social, economic and political changes etc. A good constitution must have a mechanism where it can
be changed to suit new developments. Some constitution can be amended by a simple majority in
parliament, other by referendum, other by special majority in Parliament.

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

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

SOURCES OF CONSTITUTIONAL LAW

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

1. The Constitution:

2. Ordinary legislation:
Various laws passed by the sovereign parliament in some instances determine the
constitution. E.g. in Britain there are various statutes or Acts of Parliament which are sources
of the constitution e.g. the Magna Cata - This was an Act of parliament in 1215. It is regarded

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as the 1st constitutional statute in Britain. It was the 1 st attempt to limit the absolute power
enjoyed by the feudal kings.

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

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

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

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

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

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Ordinary legislation is an important source of Constitutional law as it sets out in many different respects
specific rights, duties and obligations. Eg the case of Commissioner of Prisons, Ex parte Matovu 9 was
a detention without trial and sought to establish whether such detention was in conformity with the
Constitution. The idea of legislation is to provide one with a factual picture of the extent of the
Constitutional rights.

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

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

3. Judicial precedent i.e. decisions of courts of authority. These are similar cases decided in a similar
way. Judicial precedents are important in so far as unwritten constitutions are concerned. Judicial
precedents also play a very helpful role in cases where a constitution is written in general terms. E.g.
in the case of A.G v. Osotraco Ltd10, the Court of Appeal confronted with the question of determining
the constitutionality of an existing law depriving the appellant of his right to property in the face of the
provisions of the Constitution guaranteeing the same, interpreted Article 273 of the Constitution as
empowering all courts to modify existing unjust laws without necessarily having to refer all such cases
to the Constitutional Court. The provision enables the court to expedite justice by construing unjust
and archaic laws and bringing them into conformity with the Constitution, so that they do not exist and
are void. The article does not however oust the jurisdiction of the Constitutional Court under art. 137
where it can later declare these law as unconstitutional.

In the case of Kyamanywa Simon v. Uganda11, the appellant sought to appeal to the Supreme Court
against his sentence arguing that caning is a form of torture, cruel, inhuman and degrading
punishment and therefore in conflict with article 24 of the Constitution. The Supreme Court observed
that a decision that corporal punishment is constitutional or not meant construing the meaning of art.24
in relation to s. 274 A Penal Code Act and that involved the interpretation of the Constitution. The
Supreme Court therefore held that ‘in as far as this appeal seeks for an interpretation of the
Constitution and for a declaration u/art. 137 (3) (a) of the Constitution that corporal punishment is
unconstitutional, it follows that it is the Constitutional Court, which has the original jurisdiction in these

9 1966 E.A
10 Court of Appeal Civil Appeal no. 32/2002
11 Supreme Court Criminal Appeal no. 16/99

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

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

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

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

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

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

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

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CONSTITUTIONAL CONVENTIONS

'Convention' was coined by A.V. DICEY, in his ‘An Introduction to the Study of the Law of the
Constitution, (1885)’
Rules are not enforceable in courts of law, since they are based on consent/acquiescence, rather than
enforcement. However, they are supposed to bind those to whom they apply, e.g. before 1945 it was
an unwritten convention that the United States President would serve for only 2 terms. Frenklin
Delano Roosevelt served 4, (partly because of the war)

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

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

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

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

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

CONVENTIONS IN THE COURTS

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

In the case of Liversidge v. Anderson,12 a man was interned (imprisoned without trial) during
world war II on orders of the Home Secretary empowered by regulations made under the Defence of
the Realm Act 1935 to intern persons whom he had 'reasonable grounds for having to be of hostile
organ/association', the man challenged this order on the grounds that the Home Secretary had failed

12 (1946) A.C 206

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to inform him of the grounds of his belief. The House of Lords in the majority (Atkins in a famous
dissent) held that the regulations did not specifically require that the Home Secretary divulge
his reasons. That they only required that he should have such reasons. It was up to Parliament
to require him to explain his decision if they wished, in accordance with the Convention of
ministerial responsibility.

In the case of Carlton v. Commissioner of Works13 a civil servant issued an order requisitioning
plaintiff's factory. The Act of Parliament under which the order was purportedly issued empowered
the Commissioner (a government minister) to issue such orders. Plaintiff challenged the order on the
grounds that the commissioner neither had nor issued the order personally. The Court of Appeal held
that it was perfectly lawful for a civil servant to act on behalf of a minister for, as Lord Greme MR. put
it 'constitutionally, the decision of such an official is, of course, the decision of the minister. The
minister is responsible. It is he who must answer before Parliament for anything that his officials have
done under his authority'. Court recognised the Convention on Ministries responsibility.

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

1. THE EXERCISE OF ROYAL (EXECUTIVE) PREROGATIVE:

This entails the following:

The sovereign should act on the advice of her/ his Cabinet (through the Prime Minister);
(ii) The sovereign should invite the leader of the political party which enjoys the support of the
commons to form a government;
The sovereign should appoint as Minister’s nominees of the Prime Minister;
The sovereign should always give her/ his assent to any bills presented to her by Parliament 14 unless
there is good reason to reject the Bill;
The sovereign should normally dissolve Parliament at the Prime Minister’s request;

13 (1943) All ER 500.

14 See article 91 (3) of the Constitution

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The sovereign should exercise her/his prerogative of mercy upon presentation of petitions by
convicts.15

THE CABINET SYSTEM AND MINISTERIAL RESPONSIBILITY

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

THE HOUSE OF PARLIAMENT

A Minister must introduce financial measures in the House of Parliament; 16
Members of Parliament should have access to question ministers through the Speaker;
All political parties would be represented (normally in proportion to representation in the House of
Parliament and in Parliamentary Commissions. The opposition should lead PAC.

THE JUDICIAL PROCESS

On-going judicial cases should not be debated in parliament or elsewhere (The rule of subjudice) e.g
Lukwago issue.
Judges professional conduct should not be criticised in Parliament except on a substantive motion.
This would amount to contempt of Court.

15 Article 121 of the Constitution.

16 See article 93 of the Constitution.

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CLASSIFICATION OF CONSTITUTIONS

These are different ways of categorising constitutions. A constitution can be categorised in accordance
with its form and the type of government that is created by that particular constitution.
Q1
A: Classification according to form:

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

There is a distinction between Written and Unwritten constitutions.

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

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

family/landed gently.

(4) Democratic Constitutions:

A democratic Constitution has the following characteristics:

-Recognises the political supremacy of the people;17

-Upholds the liberty of the individual;18
-Equality before the law.19

17 For example article 1 of the 1995 Uganda Constitution.

18 See article 23 of the1995 Uganda Constitution.
19 See article 21 of the 1995 Uganda Constitution.

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(5) Rigid and Flexible Constitutions:

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

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

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

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

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

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

The constitution may adopt itself to new changes without seeming to be structurally altered formally
by changes not foreseen by the makers of the constitution.

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

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(6) General and detailed constitutions.

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

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

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

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

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

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

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

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

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

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

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Systems where people in control of the affairs in government are elected by the people

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

Benevolent dictator.

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

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

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

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

Election

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

Periodic elections.

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

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Equality.

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

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

(9) Federal and Unitary Constitutions.

Before one determines whether a Constitution is federal or unitary, there is need to study the
distribution of powers of government between the sovereign state and autonomous local authorities
within the sovereign state. The degree to which regions enjoy powers will determine whether the
Constitution is unitary or federal.

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

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

(a) Federal Constitutions:

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

Cultural considerations:

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

Size of country:

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

Historical Factors

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

Geographical Considerations

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

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

Powers are stated in any of the 3 ways: -

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

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

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

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

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

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

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

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

(b) Unitary Constitutions:

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

General Characteristics of Unitary Constitutions:

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

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

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

Unitary constitutions tend to be more flexible in terms of amendment. There is usually no requirement
to consult any regional assembly so as to have the constitution amended.
Unitary constitutions lead to maximum exploitation of all national resources, both human and material.
In unitary systems there is free flow of labour but in Federal ones there may be restrictions in regard
to where one works and because of the restrictions in the labour network, resources cannot flow easily.

Unitary constitutions lead to uniformity in decision making.

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

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

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

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

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

10. Republication Constitutions and Monarchical Constitutions:

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Constitutions may also be classified according to the method by which the political head of state is
elected or appointed. Constitution may be monarchical or republican. A constitution is said to be
monarchical where the head of state is not elected to office but becomes head of state by virtue of
birth. He / she assumes office by virtue of his/ her lineage/birth.

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

(a) Positive attributes of a monarchy.

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

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

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

(b) Negative aspects of monarchies.

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

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

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

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

Advantages disadvantages of movement system, multiparty, and mono parties

CITIZENSHIP

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

Why is citizenship important?

(a) Allegiance

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

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

(a) State responsibility to its citizens

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

(d) Freedom of movement

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

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

(f) Jurisdiction over individuals

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

(g) Rights of the individual

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

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

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

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

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

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

e.t.c) self-determination.
It is nevertheless well to remember, that the right to petition against a violation of the Constitution or
any of the rights contained therein is not confined only to citizens (see: Uganda Law Society &
Justine Semuyaba v. AG.20)

Problems associated with ascertaining citizenship:

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

The Process of determining citizenship.

Under international law, the question of citizenship is left to the individual states, for international law
recognises only one principle, ‘No one should be stateless- everyone has a right to be a citizen’.

20 Constitutional Petition. No. 8 of 2000

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However, the details of determining who and how one can gain citizenship are a matter that has to be
determined by the municipal law of a particular country. Each individual country therefore decides on
the rules of ascertaining citizenship. To ascertain a person's citizenship one has to look at the various
laws contained in a country. These laws usually include:

(a) The Constitution;

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

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

(II) Citizenship by birth: art. 10;

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

(III) Citizenship by registration, art. 12;

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

Other categories under the above include:

(a) Anybody married to a Ugandan citizen for at least three years in a legal and subsisting marriage;
(b) A Legal and voluntary migrant who has lived in Uganda for at least 10 years / such other period
as Parliament may prescribe;

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(c) Every person who when the Constitution came into force has lived in Uganda for at least 20 years,
i.e. from August, 10, 1975;

Citizenship by naturalisation Art 13:

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

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

(a) Art 11-A child of not more than 5 years of age whose parents are not known shall be presumed to
be a Citizen;
(b)A child of less than 18 years neither of whose parents is a citizen, who is adopted, by a citizen may
be registered as a citizen of Uganda.
Kawalya Kaggwa;
Singh v. Kulubya;
Unity Dow.

Loss of Citizenship

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

(a)Voluntary service in the armed force of another country which is hostile to the home country or at
war with the home country;
(b) Citizenship acquired fraudulently;
(c) Espionage (Sabotage) against the home state.
These apply to those who acquire citizenship by registration. The Constitution also establishes the
National Citizenship and Immigration Board whose functions are prescribed by Parliament21 under the
Uganda Citizenship and Immigration Act.

21 See article 16 as amended by S. 7 (4) of Act 11/2005

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Unresolved issues in the citizenship debate:

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

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

(b) Indigenous Community (schedule 3)

Definition should be more precise and not arbitrary/politically circumscribed. There is a proposal to
add five new communities, i.e. Aliba, Barundi, Gimara, Reli and Shana.

(c) Citizenship for Refugees on the Commencement of 1995 Constitution.

Refugees (especially Rwandese) who have gone home.

Duties of a citizen (from Constitution)

1. All citizens of Uganda have the right and duty at all times to defend the Constitution and in
particular to resist any person or group of person seeking to overthrow the established
constitutional order22. This right and duty was re-echoed in the case of The Uganda Law Society
& anor v. AG23, where the Constitutional Court held that Citizens have a duty to defend the
Constitution from any violent or the unlawful means of change other than by the procedure
provided for in the Constitution;
2. Citizens have a further duty to do all in their power to restore the Constitution after it has been
suspended, overthrown, abrogated or amended contrary to its provisions;24
3. To respect the national anthem, flag, coat of arms and currency25;
4. To respect the rights and freedoms of others;
5. To protect children and vulnerable person against any form of abuse, harassment or ill-treatment;
6. To protect and preserve public property;

22 Article 3 (4) (a) of the Constitution

23 Constitutional Petition no. 8/00
24 Article 3-(4) (b) of the Constitution.
25 Article 17 of the Constitution.

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7. To defend Uganda and to render national service when necessary;

8. To cooperate with lawful agencies in the maintenance of law and order;
9. To pay taxes;
10. To register for electoral and other lawful purposes;
11. To combat corruption and misuse or wastage of public property; and
12. To create and protect a clean and healthy environment;
13. All able- bodied citizens to undergo military training for the defence of the Constitution and the
14. protection of the territorial integrity of Uganda whenever called upon to do so;
15. To be patriotic and loyal to Uganda and to promote its well-being26;
16. To engage in gainful work for the good of that citizen, the family, the common good and to
contribute to national development;
17. To contribute to the well-being of the community where the citizen lives;
18. To promote responsible parenthood;
19. To foster national unity and live in harmony with others;
20. To promote democracy and the rule of law; and;
21. To acquaint himself or herself with the provisions of the Constitution and to uphold and defend
the Constitution and the law.

Refugees and Immigrants:

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

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

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

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

Refugees:

26 National Objective no. 29 of the National Objectives and Directive Principles of State Policy.

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Very closely related to the above, according to the Convention Relating To The Status Of Refugee,27
and the Protocol thereto,28 a refugee is any person who owing to a well-founded fear of persecution
on grounds of race, religion, nationality, membership of a particular social group/political opinion is
outside the country of his nationality and is unable / owing to that fear, is unwilling to avail himself of
the protection of that country; or who not having a nationality and being outside his former habitual
residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 29 The
OAU Convention Governing The Specific Aspects Of Refugee Problems in Africa 30 does recognise
the definition accorded to a refugee in the 1951 UN Convention but goes on to identify another group
of refugees who ‘owing to external aggression, occupation, foreign domination or events seriously
disturbing public order in either part of the whole of his country of origin or nationality, is compelled to
leave his place of habitual residence in order to seek refugee in another place outside his country of
origin or nationality.31

The Rights of Refugees:

There is a fundamental importance of the observance of the principle of non- refoulement both at the
boarder and within the territory of a State- of persons who may be subjected to persecution if returned
to their country of origin irrespective of whether or not they have been formally recognised as
refugees32 Expulsion only on grounds of national security, but even then, efforts should be made to
secure a country of asylum for the ‘asylum seeker’. Refugees should only be voluntarily returned
(voluntary repatriation).

Besides the general International and national33 human rights Instruments that seek to promote and
protect ‘every one’s human rights, there are specific instruments that deal with the protection of the
rights of refugees in their country of asylum and these include:

The Convention Relating to the Status of Refugees34 and the OAU Convention Governing The specific
aspects of refugees 35identify the following rights inter alia:

27 Of 1951
28 Of 1967
29 Article 1 A (2) Of The Convention
30 Of 1969
31 Article 1 (2) of the Convention. This group is commonly known as prima-facie refugees.
32 Ex Comm Conclusion no.6 of 1977 of the 28 th Session. Conclusion adopted by the Executive Committee on

the International Protection Of Refugees.

33 For example, the Bill of Rights in the 1995 Constitution of Uganda does spell out certain rights that can be

enjoyed by all, irrespective of whether or not they are citizens, for example, freedom from torture, entitlement to
the writ of habeas corpus.
34 Of 1951, Articles 3-34
35 Of 1969, Articles iv- v

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(i) Freedom from non-discrimination. They are entitled to equal treatment as other foreign
nationals;
(ii) Freedom of worship;
(iii) Exemption from reciprocity;
(iv) Exemption from exceptional measure;
(v) Respect for personal status. They are entitled to the respect of the rights acquired through
marriage and other personal laws;
(vi) They are entitled to the right of non- political association. They are not allowed to set up
organizations with political motives;
(vii) They are entitled to access of courts of law and due process (equal treatment)
(viii) Protection of Property;
(ix) Protection of artistic rights and industrial property;
(x) Protection of the freedom of movement, the choice of residence subject to the same conditions
as foreign nationals;
(xi) They are entitled to the same treatment as foreign nationals with regard to the right of
employment and especially to exorcise the libel professions;
(xii) With regard to food rationing, they are entitled to same housing as foreigners;
(xiii) They are even entitled to some elementary education as nationals and to higher education like
foreign nationals;
(xiv) They are subject to labour laws and regulations;
(xv) Facilitation of nationalisation.

GENERAL PRINCIPLES OF CONSTITUTIONAL LAW:

There are some general principles of constitutional law which are initially accepted as being part and
parcel of a good constitutional system and these principles are incorporated in constitutions through

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various ways. They may be expressly incorporated or may be inferred in the effect of some clauses
in the constitutions:-

1. Rule of law;
2. Separation of power;
3. Fundamental human rights and freedom;
4. In some cases sovereignty of parliament.

(a) THE RULE OF LAW

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

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

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

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

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

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

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

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

According to Dicey, the rule of law basically means:

1. Individuals should not be subjected to wide discretionary powers. State officials should not be able
to do everything at their own discretion. To him, such would lead to arbitrariness. So, the discretion
must be exercised judiciously (fairly) and with no discrimination/ unequal treatment;
2. The element of equality of all people before the law must be present. All classes of people
regardless of colour, creed, religious belief should be treated in the same way;36
3. Applying particularly to unwritten constitutions, the judicial arm of government is the organ with
the power to ensure that the rule of law is observed and enforced.

Rule of law is equal to three things:

(i) Individuals should not be subjected to wide discretionary powers. Wide powers are equal to
arbitrary power;
(ii) Equal subjection' of all classes of people to one law administered by the order of Acts;
(iii) Individual decisions should determine the rights of individual citizens.

36 Also see art.126 (2) (a) of the 1995 Constitution of Uganda.

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Are these view/elements necessarily correct?

Many scholars have attacked Dicey:

Leiser - faire (capitalist) liberal;

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

THE QUESTION OF THE APPLICATION OF THE RULE OF LAW:

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

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

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

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

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

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

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(c) Judges should have the merit and should be qualified to read and interpret the law as a basic
qualification. Usually, this system of election should ensure that the people qualify. In Uganda, it
is the Judicial Service Commission that appoints Judges / Justices.37
Under the doctrine of the independence of the judiciary, there must be security of tenure for the
judicial officers. Once appointed, Judges should not be removed. There is a process that must be
followed.38 The retirement age of the Judges is usually higher than that of other public officers,
ensuring maturity and fearlessness;
(d) There should be adequate remuneration for the judges. A living wage and not an earning wage
should be paid with all the facilities necessary to ensure that they are comfortable and there is
no interference from the outside.

5. There should be respect for basic and fundamental human rights. The law must recognise and
declare the human rights of individuals. These are the civil, political, economical and cultural rights.
In most constitutions, these rights are contained in a separate cap or bill. In the 1995 Uganda
Constitution, it is cap. 4. It is not enough to declare human rights but effective machinery is
necessary like the courts and the Uganda Human Rights Commission, a body charged with the
enforcement of all freedoms of all Ugandans.

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

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

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

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

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

37 See article 146-151.

38 See article 144 of the Constitution of Uganda.

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Look at the case of Pedro V. Constable Diss (1981) 2 All ER 59.

THE DOCTRINE OF SEPARATION OF POWERS:

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

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

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

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

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

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

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The American constitution is usually cited as one, which separates the powers.
a) All executive powers are with the President of U.S.A.
b) All legislative powers, with the Congress and the Senate.
c) All judicial powers are with the Supreme Court and other courts of law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CRITICISM

1. The Principal is incoherent/hopelessly ambivalent.

2. It imposes legal limits on the operation of the legislation
There is no material difference between the 3 functions, so why should one, not the other, perform
one task. For example, judicial and administrative decisions.
3. The principle is irrelevant Vs. bureaucracy/tyranny (democratic control);
4. The principle is impossible to define with precision.
5. Executives enjoy massive delegated authority.

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6. Judicial review is inhibited (makes judges reluctant to intervene) eg Kanyeihamba in

TINYEFUZA’S case

THE DOCTRINE OF SEPARATION OF POWERS:

The Executive and Cabinet system:

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

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

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

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

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

Executive authority normally means power to run the government. So the executive head is always
head of government who will appoint members of government and can remove them whenever he
wants (Cabinet and other officers basically serve at the pleasure of the President: no security of
tenure) See case of Dunn v. The Queen, held that ‘servants of the Crown hold office only during the
pleasure of the Crown, except in cases where it is otherwise provided by statute (part of the original
prerogative of the Crown (see also Rodwell v. Thomas and Terrell v. Secretary of State for the
Colonies). This power was confirmed by the case of Opoloto v. Uganda, where the court held that it
was one of the prerogative powers vested in the Crown and inherited by the President of Uganda, and
that to take away that power would require clear words in the statute (cf. case of C.B. Reilly v. The

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King, which was concerned with the abolition of an office by statute). The court would not interfere in
the dismissal of the appellant who had been discharged as a member of the Armed Forces and Chief
of Defence Staff because this could ‘embarrass and prejudice the security of the state.’ Furthermore,
in the case of Kayondo v. AG, court held that there was no inherent right to political office. However,
in Tinyefuza v. AG, Justice Kanyeihamba (at p.32) stated that,

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

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

FUNCTIONS OF EXECUTIVES

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

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

“The Chief Executive of Uganda who is equally a protector and implementer of the Constitution, albeit
at different levels from those used by the Courts of Law, should be allowed to breathe and think aloud
about his or her responsibilities to the State and Ugandans without having to be dragged to court
every time. The President should be allowed to investigate matters within the jurisdiction of the
Presidency and should be allowed discretion in combating insurgencies and rebellions as well to wage
a war authorized by Parliament without unnecessary interference from the Courts of Judicature… It
would be bad law, in my opinion, if every time the President of Uganda thought and proposed that a
certain course of action should be investigated; the President is immediately challenged in courts of
law without further ado.”

2. Ensure implementation of policies once initiated.

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

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

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

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

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

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

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

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

(a) The first election under this Constitution;

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

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

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

Security of Tenure of President

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

1. Wilful abuse of office, or violation of the oath of allegiance;

2. Misconduct or misbehaviour;
3. Physical or mental incapacity such that he cannot perform his functions.

Privileges that go with office of President

1. No direct private taxation. Art 106;

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

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

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b. Whether the commission of an International crime against humanity such as torture subjects the
Head of State to prosecution after leaving office?
Court realised that the Convention against torture of 1984 requires all states to ban and outlaw torture.
So, for the purpose of International Law, a person / Head of State cannot claim that an act is official
when International law has prohibited and criminalised the act. To rule otherwise would provide a safe
haven for tortures. Therefore, the immunity of the Head of State would be inconsistent with the Torture
Convention. Mr. Pinnochet was therefore not immune for acts of torture that he was alleged to have
committed after 1988 when the Torture Convention was ratified. Pinnochet came into power in 1973-
1992.
This nevertheless pierced the immunity syndrome leaving the Presidents at the mercy of the Courts.
The case has been seen as a landmark.
Art 98 (2) provides that the president shall take precedence over all persons.

The exercise of Royal (Executive Prerogative)

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

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

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

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

The Vice President the Kyabazinga of Busoga in this case was supplied with fish and he refused to
pay. Boumann found it difficult to sue him while he was Vice President. After his term of office the

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suit was brought against him but it was argued that the limitation time was over. Court ruled that the
president’s immunity as concerned judicial matters extended to vice presidents.

Art 106 - Salary allowances charged on the consolidated fund.

Consolidated fund:

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

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

Limitations in regard to the President.

I. Cannot enjoy a free social life;

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

State of Emergency

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

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

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

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

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

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

The composition of the Executive:

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

VICE PRESIDENT

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

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

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

THE PRIME MINISTER

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

CABINET

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

CABINET SYSTEM AND MINISTERIAL RESPONSIBILITY

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

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

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

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

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

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

There are a number of things that can he said about the censorship:
1. The rules of procedure were not very clear and this was the main reason as to Jim’s appeal to the
High Court in MUHWEZI KATUGUGU v. A.G39. Unfortunately, the C.A dismissed his petition on the
technicality that he had not got the Speaker’s permission from Parliament. But wasn’t this a wrong
decision for art. 126 (2) (e) talks of substantive justice without undue regard to technicalities. They
would have dealt with the substance.

2. The phrase appropriate action contained in para 2, art. 118 states that:
After a censorship motion has been passed, the President shall unless the Minister resigns take
appropriate action in the matter. But isn’t the word ‘appropriate action’ too wide that various meanings
can be attached to it? He can choose to transfer the Minister to do something else. Such a Minster
should just be forced to resign.

The calling of individual responsibility is collective responsibility.

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

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

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

i. Where president revokes the appointment;

39 C.A Constitutional Petition no. 4/98

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ii. Where the minister resigns;

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

THE LEGISLATURE

SUPREMACY / SOVEREIGNTY OF PARLIAMENT

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

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

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

Under English law, the doctrine of parliamentary sovereignty holds that parliament is the supreme
organ of government. In this way, it can pass laws on any matter and such law cannot be questioned
in a court of law. This position derives from the notion that Parliament represents the will of the people.
It also means that parliament has unlimited legislative competence i.e. the power to make any law
without restriction (See Edinburgh Dalkeith and Bradlaugh vs. Gosset.40 It is a doctrine, which was
developed under English constitutional history, and arose as a desire to limit the powers of the
executive which at that time were heavily dominated by the monarchy. As a result of various wars, it
was agreed that a democracy required a representative government where by all peoples are
represented at the highest possible level. As a consequence of the doctrine of separation of powers,
this representative government could only be ascertained from the role of parliament. Parliament was
thus viewed as a symbol of representative democracy.

40 (1884) 7 QB 271

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

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

But in the later case of Paul K. Ssemwogerere & Zachary Olum v. AG, 41
“I noticed that counsel for the Attorney General relied very heavily on authorities derived from English
courts while applying and interpreting the unwritten British Constitution which operates under a
sovereign Parliament. In Uganda, it is not Parliament but the Constitution, which is supreme.
Relevant authorities should have included those derived from countries with similar written
constitutions….” (P.13)

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

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

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

Thus, in the case of Paul Kawanga Semogerere v. AG42 a petition was filed seeking to challenge the
validity of the Referendum (Political Systems) Act, 2000 for being passed without the proper
procedures and time frame laid down in the Constitution of Uganda. The undisputed evidence
available indicated that the Act was assented to in June 9, 2000 and published in the Gazette in June
12, 2000. The impugned Act therefore became law in June 12, 2000 though its section 2 backdated
its effective date to July 2, 1999. The referendum for which it was made was scheduled to be held in
June 29, 2000. The impugned Act achieved its full effect and therefore became spent when the

41 Supreme Court Constitutional Appeal 1/2000

42 Constitutional Petition 3/00

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referendum was held and its results were published by the Electoral Commission in July 28, 2000
U/General Notice no. 280 and the Movement Political System adopted.

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

The Constitutional Court held inter alia:

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

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

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

vii. The attempt by Parliament in S.2 of the impugned Act to backdate the effective date
of the Act to July 2, 1999 was intended to stretch the time backward to comply with
art. 271 (2). Default had already been committed when the Act was not put in place two years
before the expiry of the life of the first Parliament selected under the Constitution and
backdating the effective date of the Act was of no help since the Constitution wanted the law

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to be in place two years before the expiry of the life of the first Parliament; Therefore, the
short time of 16 days allowed under the impugned Act as against one year intended under the
Constitution for the people of Uganda to canvass for public support to choose a political system
was inconsistent with art. 271 (2) of the Constitution.

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

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

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

II. Laws and rules made by Parliament cannot take away the Constitutional Court’s jurisdiction to hear
allegations of breach of the Constitution by Parliament. Where breach of the Constitution is alleged,
the Court should decide whether or not there was a breach (Oder at 21, and 25): This point was also
emphasised in the case of Paul Kawanga Semwogere v. A.G43 that a system set in place by or
under an Act of Parliament or any law can be challenged u/ article 137 of the Constitution at anytime
not withstanding the repeal or expiry of the Act.

43 Ibidem

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In Uganda, the position is different from that of the United Kingdom. We have a written Constitution,
which, as Article 2(1) provides, is the supreme law of the land and has binding force on all authorities
and persons throughout Uganda. Parliament is subject to the Constitution. Where it is alleged that
Parliament has acted unconstitutionally, the courts, as the protectors and interpreters of the
Constitution, have jurisdiction to inquire into such alleged acts of Parliament even if they relate to
matters of internal proceedings of Parliament.

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

Sovereignty of parliament is usually ascertained from the following:-

Doctrine of separation of powers.

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

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

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

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

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

Limitations:

I) Public Policy

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

ii) Consultation

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

iii) Public Opinion

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

The prohibition of retrospective legislation

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

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

-LAWS MUST CONFORM TO THE CONSTITUTION:

In the case of Zachary Olum & Anor v AG 44 the Constitutional Court pointed out that Parliament
u/art. 79 has power to make laws. The laws so made must however conform to art. 2 and if they are
already existing laws must pass the test laid down by art. 273.

Privileges & Powers of Parliament.

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

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

44 Constitutional Petition 6/99

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

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

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

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

Onama Felix Kenyi v. Augus Newspaper,45 the appellant sued the respondent Newspaper in libel
on the basis of words spoken in the National Assembly. The respondent newspaper won in the first
instance. However, on appeal, the case was overturned because the appellant demonstrated that
what was reported in the newspaper was different from what was said in the House.

Importance of the case:

The reformation of the privileged character of legislative proceedings.

There are three key ideas that form the notion of free speech in parliament.
(I) There is only the National Assembly that can and should judge the conduct of its members. In
other words, if members are indiscplined, it is the House to set the sanction and not anyone
else.
(II) Not only the House members but also private members who communicate with the National
Assembly are protected;
(III) The free speech privilege is absolute and not limited to any matter whatsoever with only one
exception- the sub judice matters.

45 (1969) EA P.62

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Thus, in the case of AG v. Tinyefuza,46 the AG, then Bat Katurebe criticised the Constitutional Court
for ignoring S. 14(2) of the National Act which provision barred public officers from producing certain
evidence without authority. One of the issues before court in this case was whether the appellant was
protected under art. 97.

Per Wambuzi CJ at p. 20,

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

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

2. Publications of own proceedings in documents known as Hansards. Parliament has the right to
control the use of Hansards. This was the case in Muhwezi Katugugu V. A.G47 which was dismissed
because the petitioner had failed to get permission from the Speaker.
Also see OPOLOTO’s case.
xi. Freedom of all members of parliament when going to attend or returning from a sitting of a
Committee of the Assembly;
xii. Parliament can devise punishments for any breach of privilege or contempt of Parliament
including admonition, reprimand, suspension or expulsion or an order that the offender be
tried. In this respect, the Speaker has the power to discontinue the speech of any member who
is being irrelevant or who is guilty of tedious repetition;
xiii. Parliament has the power to regulate its own proceedings and also to be paid adequate
remuneration.

46 Supreme Court Appeal 1/97

47 Constitutional Court Petition no. 4/98

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xiv. Regulating discipline is another privilege in parliament. Parliament disciplines its own
members. The disciplinary procedures are contained in parliament procedures, which are
made by the parliament.

HOUSE OF PARLIAMENT

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

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

Rules of procedure

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

Remuneration

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

Financial Powers

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

Parliament also has powers through its public accounts committee to follow up government
expenditure. In each financial year its role is to ensure that various government departments properly
expend money.
Composition of Parliament (Art 78)

Has 4 categories of membership:-

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

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

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

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

How they become members of parliament.

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

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

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

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

Functions of Parliament:

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

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

Procedure in making laws:

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

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

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

HOW ARE LAWS MADE?

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

The required law is then drafted and the agreed policy is translated into a legal provision.
The 1st parliamentary counsel/government draftsman who receives instructions from the relevant
government department does this. At this stage, the parliamentary draftsman will have to decide
whether it’s an amendment to an existing law or a substantive change. He will also be expected to

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ensure that all changes/likely effects on the existing laws are actually taken into account such that if
it requires amendment of the existing law it should be amended accordingly.

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

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

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

1st reading: A simple introduction of the proposed law to the members. It can take as short as one
minute. There is no discussion on the bill at this stage but the minister will have circulated the bill to
the members of the house to know about it before it is presented to parliament and the bill will also
have to be gazetted in the Uganda Gazette. Circulation and publication is to enable both members of
parliament and the public to know about provisions of the bill so that they can contribute to the debate
effectively.

In the case of Miria Matembe & 2 Ors. V. AG48court held that

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

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

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

48 Constitutional Appeal No.1 of 2005

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

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

3rd reading: The bill is read for the 3 rd time and this stage involves casting a vote as to whether the
bill has become law or not but this is just formality (at the end of 2nd reading it is already law). What is
required next is the presidential assent.

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

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

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

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

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

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

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

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

Art 164 (3): Monitor expense.

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

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

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

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

Constitutionalism and Democratic Provisions: Constitutional checks of executive powers.

Parliament is given power to remove the president - for certain specified reasons.49 This is so because
it’s composed of representatives of the people and it’s the only body, which is suitable to remove
democratically, elected government. This power ensures that misdeeds outlined in Art 107 are not
committed by the president and it’s also parliament that ensures that the country is not led by a
physically/mentally incapable president.

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

49 See article 107

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Approvals of public appointment

The constitution gives parliament the powers to approve various appointments of public officers. This
was in recognition of the need to have competent and qualified people at the helm of public affairs
and also to ensure that the president cannot make sectarian appointments in disregard of the actual
national character of the country. Parliament approvals ensure qualification, competence and fair
distribution of public appointments among various tribes, regions and religions etc.

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

Art 203 (3c)?

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

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

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

Powers relating to public finance and the national economy.

Parliament is given power to regulate such matters. 50 Finance matters can only be approved by
parliament. There must be a bill following imposition of taxes for paying of public debts. Under art 152

50 See article 93

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- no tax should be imposed without the authority of parliament. Thus Parliament debates and approves
whom and what is taxed and the rate of taxing and promoting constitutionally established constitution.
The constitution provides that parliament will be composed of people's representatives and it’s the
duty of parliament to promote and respect the constitutionally established constitutional provisions.

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

established in the constitution. Whereas parliament is not expected to interfere in the functioning of
the executive, under the constitution, it is given power to do so. Similarly the constitution doesn't give
parliament power to undermine the functioning of the judiciary.
Art 92 requires that Parliament shall not pass any law to alter the decision of the judgement of any
court of law. This is different from the constitutions before.51

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

There are different ways and instruments and bodies given the power and authority to carry out the
functions of the Judiciary52 but the guiding principle is that of the impartiality of the body that should
be ready to listen to both sides in an open and non-discriminatory way. This is the judicial power
exercised by the judiciary and virtually, no state claiming to be a democracy does not have a judicial
arm of government.

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

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

51
See Kyabazinga's case where parliament reversed the decision of court and Ibingira's case.
52 For example the different Commissions, most of which have quasi- judicial powers

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(b) Should the death penalty be upheld?53

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

3. In determining the necessary boundaries of good governance.

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

THE STRUCTURE OF THE JUDICIARY:

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

Thus, one of the issues that confronted court in the case of Joseph Tumushabe v AG 54, was the
jurisdiction of the General Court Martial. The Constitutional Court held that the Uganda Peoples
Defences Act that provides for the General court-martial is an Act of Parliament. U/art. 129 (1) (d)
Parliament cannot establish Courts that are superior to the High Court. It can only establish
‘subordinate Courts’ which u/art. 257 mean a court subordinate to the High Court. Such subordinate
Courts include the General court-martial.

Furthermore, the jurisdiction of the General court-martial is original and appellant over all offences
and persons under the UPDF Act.
.

53 See the case of Susan Kigula and Ors v. A.G

54 Constitutional Petition 6/04

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

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

Earlier on in the case of Uganda Law Society v AG55, the Constitutional Court had held that the Field
Court Martial is one of the subordinate Courts established by Parliament and therefore a Court of
Judicature and one of competent jurisdiction as envisaged in art. 22(1) of the Constitution.

When the Constitutional Court was agin confronted with the same issues in the most recent case of
Uganda Law Society v. A.G 56 also known as the Besigye Case, the Constitutional Court was quick
in pointing out that it had erred in its earlier decision in Tumushabe’s case and that actually, the High
Court and the General Court Martial have concurrent jurisdiction. But was this a well- reasoned
decision in the face of article 257 defining the word ‘court’ married to article 129 (1) that expressly
provides for the courts of judicature with the High Court being one of them? Did the C.A delegated
intend to impliedly incorporate the General Court-Martial in the hierarchy of the Courts of Judicature?57
Justice Kanyeihamba in Tinyefuza v. AG at p.10:

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

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

55 Constitutional Application no. 7/03

56
57 Also see the Judicature Act.

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But later in Miria Matembe & Ors. v. AG 58

, responding to the Attorney General’s argument that the
court had no power to issue an injunction or other restraining order against the government and the
legislature, quoting Kanyeihamba in the Tinyefuza case, the court stated,

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

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

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

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

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

b. Justice shall not be delayed;
c. Adequate compensation shall be awarded to victims of wrongs;
d. Reconciliation’s between parties shall be promoted and

58 Constitutional Application no.2/05

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e. Substantive Justice shall be administered without undue regard to technicalities- this has also
come to be known as the lay counsel’s excuse;
But all this has been subjected to the law. That justice must be done goes to the position of the party,
whether political, social or economical. Justice shall not be delayed and court should try to do away
with the anything that holds it back. The compensation awarded to victims of wrongs should be
sufficient and court process should be the last resort and where reconciliation can be afforded, this
should take priority. Did the C.A delegated intend that rules of procedure should be ignored in favour
of substantive justice?59

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

What does the independence entail?

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

Musalu Musene v. AG
Julia Ssebutinde v. URA

JUDICIAL IMMUNITY:

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

In the case of Maliam Adekur & Anor v. Joshua & the AG60 the petitioners sought to make the
Attorney General liable for the actions of the Magistrate who had tried them following their arrest. The
brief background to the petition is that the first petitioner, refused to be inherited by her brother - in
law pursuant to the Iteso local customs and instead eloped with the second petitioner was arrested
and charged before a Magistrate’s Court. The petitioners alleged inter alia that the Magistrate failed
to protect their constitutional right to marry each other to the exclusion of any custom.

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

59 See how the Judiciary has interpreted this provision.

60 Constitutional Petition no. 1/97

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

Further more in the case of Serapio Rukundo v. AG61 the Constitutional Court held inter alia that no
action can lie against the Government in respect of an act done in the discharge of judicial functions
of the Attorney General.

REMOVAL OF JUDICIAL OFFICERS:

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

The procedure for the removal is provided under article 144 (3-7). A judicial Officer is free to retire at
any time on attaining the age of 65 but in any case for the case of a CJ at the age of 75, the Principal
Judge of the HC on attaining the age of 65 and in each case, subject to article 128 (7), on attaining
such other age as may be prescribed by Parliament by law.62

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

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

PRIVILEGES OF JUDICIAL OFFICES:

61 Constitutional Case no. 3/97

62 See article 144 (1)

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The issue in the case of Masalu Musene Wilson & Ors v AG,63 touched on the taxation of the salary
of some Judicial Officers and as to whether any taxation thereto was constitutional. The brief
background to the Petition was that Petitioners, the first one being a Registrar of the Supreme Court,
the second being a Chief Magistrate and the third and fourth being Magistrates Grade one and two
respectively sought to challenge certain provisions of the Income Tax Act (Cap. 340) as being
unconstitutional for taxing their salaries, allowances, privileges, retirement benefits and other
conditions of services of Judicial Officers.

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

The Constitutional Court held inter alia that

(I) When the Petitioner’s fixed salaries are taxed at the end of the month, such taxation has
the effect of reducing, diminishing them naturally, varying them and changing them from
what they were indicated to be in their letters of appointment when they were stated to be
fixed, to a reduced or diminished state which is to their detriment or disadvantage.
Therefore, by taxing the salary or emoluments of a judicial officer, the end result
cannot amount to anything else other than to a variation and a reduction or a diminution of
such income;

(II) While it is the duty of every citizen to play certain roles in the society u/art. 17 of the
Constitution, the judicial officer’s role and duties are unique and different. Judicial officers
are charged with safeguarding the fundamental rights and freedoms of the citizenry. In the
performance of their duties, they are entrusted with checking the excesses of the executive
and the legislature. These duties require insulation from any influence, direct/ indirect that

63 Constitutional Petition no. 5/04

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may warp their judgment or cause them to play into the hands of corrupt elements especially
when there is a climate of political excitement;

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

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

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

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

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

independence of the judiciary and of security of tenure will have become nugatory and a

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

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

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

APPOINTMENT AND THE ROLE OF THE JUDICIAL SERVICE COMMISSION AND PARLIAMENT
IN THE SELECTION OF JUDGES

The case of Justice Letitcia Mukasa-Kikonyogo

The case of Justice Remigio Kasule

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ACCESS AND SPEED OF DETERMINATION OF A CASE

In the case of Charles Onyango-Obbo & Andrew Mujuni Mwenda v. AG 64 Justice Mulenga referred
to the preliminary order made by the Constitutional Court to stay the hearing of the constitutional
petition pending disposal of the criminal case against the appellants in the magistrate’s court. “The
court made the order at its own initiative, notwithstanding the unanimous view expressed by counsel
on both sides. The Court stated that the petition should proceed before the criminal trial.” The grounds
for doing so were that the purpose of the petition was to ‘circumvent or even pre-empt the criminal
prosecution.’ The court relied on the case of Arutu John v. AG65. However, Justice Mulenga stated,
“with the greatest respect to the Constitutional Court that order was misconceived, and inconsistent
with the letter and spirit of the Constitution. Under Article 137, any person may access the
Constitutional Court in either of two ways (directly under Clause 3, or if it has been referred to it by
another court (other than a field court martial) under Clause 5. In any event, under Clause 7, the court
must proceed to hear and determine the petition as soon as possible and may, for that purpose,
suspend any other matter pending before it. And furthermore, where a court refers a question that
arises in proceedings before it, it must await the decision of the question by the Constitutional Court,
and ‘dispose of the case in accordance with that decision.’ ”

Mulenga concluded by stating that,

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

INTERPRETATION Vs. ENFORCEMENT

The Constitution gives provision for redress where a constitutional right has been violated. There are
however two distinct ways of proceeding to court and while one such way is under article 50, the other
is under article 137 of the Constitution. The judiciary has adequately dealt with the difference between
the two articles.

Several cases have been referred to the Constitutional Court in which the issue of interpretation versus
enforcement of the Constitution was at stake. In the case of Isaac Busulwa & 2 ors. v. AG66 the

64Supreme Court Constitutional Appeal no. 2/02

65 Constitutional Petition no. 4/97
66 Constitutional Petition no. 1/02

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Constitutional Court stated that the “question of whether or not an arrest and detention were lawful or
not could be resolved by any court of competent jurisdiction under Article 50 of the Constitution.”

In the case of Joyce Nakacwa v. A.G & Ors 67, the petitioner proceeded to the Constitutional Court
U/art. 137 of the Constitution alleging inter alia that her rights had been violated when she was denied
maternity care and was forced to walk while still bleeding and weak from the delivery and her clothing
all stained with blood.

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

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

The law applicable in matters of the interpretation of the Constitution under article 137 (3) of the
Constitution has been ably laid down in the case of Uganda Journalists Safety Committee & Ors v
68
AG . Court was also trying to draw a distinction in relation to the law applicable in matters falling

67 Constitutional Petition no. 2/2002

68 Constitutional Petition no. 7/97

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under article 137 (3) and 137 (5) of the Constitution. In this way, Court pointed out that the rules of
procedure for proceeding to the Constitutional Court are prescribed by Legal Notice 4/96 and are cited
as ‘ The Rules of the Constitutional Court (Petitions for Declarations u/ art. 137 of the Constitution)
Directions, 1996.

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

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

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

The case of Paul Kawanga Semogerere v. AG69 sought to challenge the validity of the Referendum
(Political Systems) Act, 2000 for having been passed without following the proper procedures and
time frame laid down in the Constitution of Uganda. Court held that the right to challenge an Act of
Parliament or any other is provided U/article 137 (3) of the Constitution. The article empowers any
person who alleges that an Act of Parliament, or any other law or anything in or done under the
authority of any law is inconsistent with or in contravention of a provision of the Constitution to
challenge it in the Constitutional Court. Therefore, the allegation that the holding of the Referendum
on June 29, 2000 was inconsistent with article 69 falls U/art. 137 (3).

Furthermore, a system set in place by or under an Act of Parliament or any law can be challenged u/
article 137 of the Constitution at anytime not withstanding the repeal or expiry of the Act.

69 Constitutional Petition no. 3/00

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In the case of Philip Karugaba v. AG,70 one of the issues concerned the extent of the jurisdiction of
the Constitutional Court. The Petition sought to challenge r. 15 of the Rules of the Constitutional Court
(Petition for Declarations U/art. 137 of the Constitution), Directions, 1996 as being inconsistent with
article 26 (2) of the Constitution. The rules, it was alleged denied the estate of a deceased litigant of
the right to continue with the case thus depriving it of the right to property.

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

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

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

The case of Dr. James Rwanyarare & anor v. AG71 sought to attack inter alia the Constitutionality of
the President of the Republic of Uganda. At the commencement of the hearing, counsel for the
respondent raised preliminary objections attacking Court’s jurisdiction to entertain the petition and its
lack of competency to entertain the petition.

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

In the case of Haruna Kanabi v. Uganda,72 the Chief Magistrate who tried the case at first instance
having been confronted with the question of the interpretation of the Constitution in relation to the
offence of sedition as against article 29 of the Constitution ignored the aspect of the interpretation of
the Constitution. On appeal, the High Court by way of per incurim observed that the trial Magistrate
had pointed out by way of per incurium that ‘there was need for matters like this one to be referred to

70 Constitutional Petition 11/02

71
72 Criminal Appeal 72/95

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a Constitutional Court to determine what is demonstrably justifiable in a free and democratic society
and put Uganda in line with the position of other
Jurisdictions.’ The High Court thus observed:

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

Since the trial Magistrate’s problem above in my view falls under the second category, she ought to
have petitioned the Constitutional Court in her personal capacity in respect of the matter. The good
thing is that the door is still open for her to do so even now. Just in case I am wrong and the said
problem is either one of pure constitutional interpretation, a mixture of the interpretation of the 1995
Constitution and conflict of it with the said provisions of the Penal Code Act which ought to be referred
by Court to the Constitutional Court for interpretation, I would again submit that because the said
problem arose during the hearing of the original case, the trial Magistrate who herself raised it ought
to have referred it to the Constitutional Court u/ art. 137(5) of the said Constitution.
I would further add that this court would be under no obligation to refer the said matter now to the
Constitutional court since the same never arose before it in the sense that first of all, I do not share
the Chief Magistrate’s fears concerning Ss. 41 and 42 of the PCA vis-à-vis the Constitution. And
secondly, none of the parties before me during the appeal ever indicated that they wanted any matter
to be resolved by the Constitutional Court before this appeal was disposed of.”

The case of Charles Mubiru v. AG73 emphasizes that for the Constitutional Court to have jurisdiction,
the petition must on its face show that interpretation of the Constitution is required.

In the case of Charles Kabagambe v. UEB,74 the petitioner sought to challenge the manner of his
dismissal from employment as inconstent with article 42 of the Constitution.

73 Constitutional Petition no. 1/01

74 Constitutional Petition no. 2/99

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

The Constitutional Court held that:

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

In the case of Dr. James Rwanyarare & anor v. A.G, 75 the Constitutional Court held that “the
Constitutional Court was created under article 137 to deal with questions relating to the interpretation
of the Constitution. Declarations by this Court can only be brought under articles 137 and rule 3 (1)
of Legal Notice no. 4/96. Petitions for the enforcement of rights and freedoms under article 50 do not
belong to the Constitutional Court. The Constitutional Court only deals with matters falling under the
article by way of reference made under article 137 (5).”

In the case of Serapio Rukundo v.

A.G76, an issue arose before the Constitutional Court as to the procedure to adopt where a question
as to the interpretation of the Constitution arises in criminal or civil proceedings in a court. The
Constitutional Court held that in such a case, the trial or appellant court does not have to stop the
proceedings in that case and file a petition in the Constitutional Court seeking to resolve that
Constitutional issue. The proper course is to proceed with the case and raise the issue in the course

75 Constitutional Petition 11/97

76 Constitutional case no. 3/97

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of the hearing and then a reference of the issue would be made after the evidence sufficient to
substantiate the claim is recorded.

A similar situation arose in the case of Arutu John v. A.G77. The petitioner was charged with the
offences of Abuse of Office C/S. 83 of the Penal Code Act in the Magistrate’s Court. Before the case
went for trial, the Petitioner filed a Constitutional Petition objecting to the criminal proceedings against
him and pleading that he enjoyed judicial immunity from prosecution U/Art. 128 (4) of the Constitution
and S.15 of the Penal Code Act which in effect render the proceedings against him a nullity. Before
the Petition was heard, the criminal case against the Petitioner went for trial and Counsel for the
Petitioner raised the same objection of the judicial immunity enjoyed by the applicant. A reference was
thus made to the Constitutional Court.

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

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

But an aggrieved party who is not satisfied with a decision of court and desires to proceed under article
137-(3) (b) does not have a locus standi in the Constitutional Court. This was the decision reached by
the Constitutional court in the case of Serapio Rukundo v. A.G78. The petitioner who claimed to be
affected by the decision reached by the Court of Appeal in the case of Bakunda Darlington v. Dr.
79
Kinyatta Stanley & anor sought to proceed to the Constitutional Court under article 137-(3) (b).
The Constitutional Court explained that “the act complained of’ U/art. 137 if it is a decision of court
can only be challenged by way of appeal if the law gives the aggrieved party such right. This is so
because the power to interpret statues is vested in the courts. Therefore, a decision of a final court
has no remedy in the Constitutional Court, as the latter court is not an appellate court.”

77 Constitutional Petition no. 4/97

78 Constitutional case no. 3/97
79 Court of Appeal Civil Appeal no. 27/96

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The case of Uganda Law Society & anor v. A.G80 pointed out another important aspect of the
jurisdiction of the Constitutional Court in matters of the interpretation of the Constitution. The petition
sought to challenge the constitutionally of the Constitution (Amendment) Act, no. 13/2000.

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

The right to petition the Constitutional Court for interpretation of the Constitution is not limited to only
individuals and citizens but extends to any ‘any person.81’
Finally, in the case of A.G v. Osotraco Ltd,82 the Court of Appeal pointed out that

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

In the case of Kyamanywa Simon v. Uganda83, the Supreme Court having been confronted with the
question of the interpretation of the Constitution that had arisen in the course of hearing the appeal
from sentence from the Court of Appeal held inter alia that it is the Constitutional Court, which has
jurisdiction in matters of interpretation of the Constitution. It also has original jurisdiction in cases
where a person seeks a declaration that an Act of Parliament is inconsistent with a provision of the
Constitution.

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

In case the decision of the Constitutional Court on the question is appealed against, the Supreme
Court held that then such an appeal would come to it in its jurisdiction as the appellant Constitutional
Court consisting of all the members of the Court. In case the decision of the Constitutional Court on

80 Constitutional Petition no. 8/2000

81 See article 137
82 Civil Appeal 32/02
83 Criminal Appeal no. 16/1999

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the question referred to it is not appealed, then such a decision would stand as the law until it is over-
turned or upheld on appeal by the appellate Court in another case.

It is imperative to observe that there are two kinds of laws that might infringe on the Constitution under
article 137-(3) (b). Existing law and law that has come into force after the enactment of the 1995
Constitution. The Constitutional court looks at these laws differently. Thus, in the case of Pyarali
Abdul Kasule Ismail v. Adrian Sibo84 the applicant sought to challenge the provisions of the
Expropriated Properties Act85, passed in 1982 as unconstitutional for depriving him of his right to
property. This was because the aforementioned Act nullified the sale of the suit property to the
defendant and all dealings of any kind in properties which had been expropriated under the Assets of
Departed Asians Decree,86 of 1973 and instead returned it to the respondent, an Asian. The
Constitutional Court in looking at the Expropriated Properties Act in the face of article 26 of the
Constitution held that Act 9/82 must be “construed with such modifications, adaptations, qualifications
and exceptions as may be necessary to bring it in conformity with the 1995 Constitution.”

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

How is the Constitution interpreted?

The Constitutional Court is under article 137 vested with the jurisdiction to interpret Acts of Parliament
and even declare them unconstitutional. Such Acts also extend to Acts to amend the Constitution.
This was held in the case of Uganda Law Society & anor v. A.G87 where one of the points of
contention was whether the Constitutional Court had the jurisdiction to pronounce themselves on the
legality of the Constitutional (Amendment Act) no. 13/2000. The Constitutional Court held itself as
having the jurisdiction to interpret an Act amending the Constitution. “Even when the Act becomes
part of the Constitution, it still remains an Act of parliament and can therefore be challenged in the
Court.” The case of Joyce Nakacwa v. A.G88 the Constitutional Court pointed out that allegations
made to the Constitutional Court, if in conformity with articles 137 (3), give rise to the interpretation of
the Constitution and the court has the jurisdiction to entertain them. That the petitioner’s allegation

84 Constitutional case no. 9/97

85 Act no. 9/82
86 no. 27/1973

h87 Constitutional Petition no. 8/2000

88 Constitutional Petition 2/2001

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that the conduct of the medical council had violated her rights guaranteed under specified provisions
of the Constitution required the determination of the meaning of the alleged violated provisions and
whether the conduct complained if actually violates them. The carrying out of this exercise by court is
the interpretation of the Constitution and not the enforcement of rights and freedoms.

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION:

In the case of Joseph Tumushabe v. A.G,89 the Constitutional Court tried to lay down some of the
rules followed when interpreting the Constitution.

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

In the case of Salvatori & anor v. AG90 the petition sought to challenge certain sections of the
Witchcraft Act as unconstitutional.
The Constitutional Court held that
(I) The rules applicable to the interpretation of statutes apply to the construction of constitutional
provisions only that a Constitutional provision should be given liberal construction, unfettered
with technicalities in regard to human rights and freedoms;
(II) The ‘purpose and effect’ principle entails the Court considering both the purpose and effect of
an impugned statute to determine its constitutionality. Where the purpose of the statute
infringes on a constitutional right, the statute is declared unconstitutional and where the
purpose of the statute is purportedly within the Constitution, court still goes further to examine
its effects.
(III) A statute, which purports to encroach on a personal or proprietary right of a citizen, is to be
construed strictly. The effects of the Exclusion Order are that s. 7 of the Witchcraft Act is in
conflict with arts. 24 and 44 of the Constitution.
(IV) The validity of any law or custom depends on its passing the test laid down by art. 2 of the
Constitution. Art. 28 (12) requires the definition of an offence and its prescription by law. Any
vague interpretation fails to satisfy the requirement. S.3 of the Act fails to adequately define

89 Constitutional Petition 6/04

90 Constitutional Petition no. 2/97

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

In the case of Zachary Olum & anor v. AG91 the petition sought inter alia a declaration to the effect
that s.15 of the National Assembly (Powers and Privileges) Act; Cap 249(hereinafter referred to as
Cap. 249) is unconstitutional for prohibiting Members of Parliament and certain employees of
Parliament from using evidence of proceedings in the Assembly or its Committees elsewhere without
the special leave of the Assembly having first been obtained.
The Constitutional Court held that:

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

Further more, in the case of Masalu Musene Wilson & Ors v. AG, 92 the Constitutional Court held
that in interpreting the Constitution, where words or phrases are clear and unambiguous, they must
be given their primary, plain, ordinary or natural meaning. The language used must be construed in
its natural and ordinary meaning. The sense must be that, which the words used ordinarily bore at the
time when the statute was passed. All provisions of the Constitution concerning an issue should be
considered together. The Constitution must be looked at as a whole.

91 Constitutional Petition no. 6/99

92 Constitutional Petition no. 5/04

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The Constitution has to be given a generous rather than a legalistic interpretation, aimed at fulfilling
the purpose of the guarantee and securing the individuals the full benefit of the Instrument. Both the
purpose and effect of the legislation must be given effect to.

In the case of Joseph Tumushabe v AG93 the Petitioner sought to challenge inter alia the procedure
of the General Court Martial in trying suspects and its refusal to respect the rights of prisoners in trials
before the Court especially the right to bail.

The Constitutional Court held that

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

The case of A.G v. Osotraco Ltd,94 the Court of Appeal pointed out that when construing the ‘existing
law’ such has to be in line with the thinking or norms of progressive society.

In the case of Dimanche Sharon & Ors v. the Makerere University95, the Constitutional Court held
that inter alia:

I. When interpreting the Constitution, all provisions of the Constitution concerning an issue are
to be considered together, each one supporting the other so as to give effect to the purpose
of the Constitution.
II. Constitutional provisions are to be accorded a generous and purposive construction especially
the part protecting the fundamental human rights and freedoms. The interpretation should not
be legalistic so that fundamental and human rights are accorded maximum protection.
III. Derogations from fundamental human rights should be given a narrow and strict construction;
IV. The standard of proof applied in cases of constitutional interpretation is on a balance of
probabilities;

93 Constitutional Petition 6/04

94 Civil Appeal 32/02
95 Constitutional Cause 1/03

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V. It is incumbent upon the petitioners to show that they are entitled to the remedies sought on
the ground that their fundamental and human rights have been infringed by the respondent’s
policy. However, the respondent must show justification for a lawful derogation from such
fundamental rights within the ambit of article 43;
VI. Both the purpose and effect of the policy impugned must be examined to determine its validity
or invalidity.

In Suzan Kigula & 416 v. AG96, the Constitutional Court held that it is a well known rule of
interpretation that to take away a right given by common law or statute, the legislature should do that
in clear terms devoid of any ambiguity. The right to life is not included in art.44 on the list of the non -
derogable rights. Therefore, arts. 24 (dealing with freedom from torture, cruel, inhuman or degrading
treatment or punishment) and 44 could not have been intended to apply to the death penalty permitted
in art. 22 (1)

In the case of Fox Odoi & anor v. AG,97 the Constitutional Court held that in determining the
constitutionality of a legislation or acts or omission of an authority, the principle of ‘purposes and
effects’ must be considered. If the purpose or effect of implementing a provision of an Act is
inconsistent with a provision of the Act, the Act shall be declared unconstitutional.

PROCEDURE v. SUBSTANTIVE JUSTICE

‘Did the Constituent Assembly delegates intend to wipe out rules of procedure by enacting article 126
(2) (e) of the Constitution’ is a question that rocked the Courts in the wake of the 1995 Constitution.
Also known as ‘the lazy Counsel’s whip/ excuse’, this was a new provision in the supreme law of the
land and many advocates thought that they would get around to beating the once rigid rules of
procedure and win their clients cases. There were thus a number of cases that battled it our with the
judges as to the proper course to adopt in the face of ‘technicalities’ and the technicalities that were
envisages by the Constitute Assembly delegates in enacting the relevant provision. The Courts
labored to differentiate between matters they regarded as ‘fatal’ and those that they viewed as
technicalities.98

96 Constitutional Petition 6/03

97 Constitutional Petition 8/2003
98 See the case of Uganda Law Society & anor v. A.G, Constitutional Petition no. 8/2000.

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In the case of Dr. James Rwanyarare & anor v. A.G99, the issue of the intended meaning of article
126 (2) (e) was addressed by the Constitutional Court. The petitioners in seeking to avoid rules of
procedure relied on article 126-(2) (e) as emphasizing substantive justice in the face of technicalities.
The Constitutional Court lay down the principle that Article 126-(2) (e) has not done away with the
requirement for litigants to comply with the rules of procedure of litigation. The Article merely gives
constitutional force to the well-known and long established principle at common law that rules of
procedure act as handmaidens of Justice. Justice cannot be properly administered without following
important rules of procedure.

In the case of Serapio Rukundo v. AG100 the one who felt aggrieved by the ruling of the Court of
Appeal in Civil Case no.27/1996, Bakunda Darlington v. Dr. Kinyatta Stanley & Anor that an
affidavit commissioned by an advocate without a valid practicing certificate is invalid proceeded to the
Constitutional Court. The petitioner claimed to be affected by that ruling and attacked it as being
inconsistent with art. 126 (2) (e) of the Constitution.

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

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

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

99 Constitutional Petition 11/97

100 Constitutional Case no. 3/97

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In the case of Joyce Nakacwa v. AG & Ors101 the petitioner’s claim was inter alia that her rights had
been violated when she was denied maternity care and was forced to walk while still bleeding and
weak from the delivery and her clothing all stained with blood. She however filed her petition outside
the time limit for Constitutional Petitions claiming that she was incapacitated from filing in time as she
had been imprisoned soon after the violation of her human rights.

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

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

Thus, in the case of the Uganda Law Society & anor v. A.G 102 the Constitutional Court held failure
to state who signed the first petition and the capacity in which he/she signed as a matter of technicality
that is not fatal in view of article 126 (2) (e) of the Constitution.

In the case of Serapio Rukundo v. A.G103 at the hearing of the petition, counsel for the respondent
raised a preliminary objection that the petition and the accompanying affidavit were defective having
been drawn by an advocate lacking a valid practicing certificate. This objection was overruled but two
days later, the Court of Appeal in Bakunda’s104 case ruled that an affidavit commissioned by an
advocate without a valid practicing certificate is invalid. It is on the basis of that decision that the
petitioner brought this petition. The Constitutional Court in addressing the objection held that “while it
is true that when entertaining Constitutional matters particularly on questions of human rights, courts
should ignore minor irregularities, it is important that rules of procedure should be followed to ensure
smooth and predictable conduct of Constitutional petitions.”

101 Constitutional Petition no. 2/01

102 Constitutional Petition no. 8/2000
103 Constitutional case no. 3/97
104 Court of Appeal Civil Appeal no. 27/96

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There is a thirty days rule on limitation of the filing of constitutional petitions 105. In the case Serapio
106
Rukundo v. A.G, the Constitutional Court held that The purpose of the requirement U/r. 4 (1) of
the Fundamental Rights and Freedom (Enforcement Procedures) Rules), 1992, Directions, 1996
requiring the lodging of a petition within 30 days after the breach of the Constitution complained of
takes into account inter alia the importance of Constitutional cases which must be attended to
expeditiously and seeks to cut out stale cases. Therefore, the time limit also takes into consideration
Constitutional petitions.

In the case of Al Haji Nasser Ntege Sebaggala v. A.G & Ors 107, the Constitutional Court held that
Rule 4 (1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure)
Rules 1992 Direction prescribes thirty days within which to lodge a petition after the date of the breach
of the Constitution complained of in the petition. A Constitution Petition is therefore incompetent if it is
brought out of time unless the time has been extended and that where a period of limitation is imposed,
it begins to run from the date on which the cause of action accrues. If the plaint does not plead disability
as an exemption from the limitations required by Order 7, Rule 6 of the Civil Procedure Rules which
is coached in mandatory terms, failure to do so is fatal to the claim outside limitation.

METHODS OF AMENDING THE CONSTITUTION.

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

expressly;
by necessarily implication;
By infection.

Thus, in the case of Fox Odoi & anor v. A.G,108 the Constitutional Court pointed out that if an Act of
Parliament has the effect of adding to, varying or repealing any provision of the Constitution, then the
Act is said to have amended the affected article of the Constitution. There is no difference whether
the Act is an ordinary Act of Parliament or an Act intended to amend the Constitution. The amendment
may be effected expressly, by implication or by infection as long as the result is to add to vary or
repeal a provision of the Constitution. It is not material whether the amending Act states categorically
that the Act is intended to affect a specified provision of the Constitution. It is the effect of the
amendment that matters.

105 Rules of the Constitutional Court (Petitions for Declarations under article 137 of the Constitution) Directions,
1996, rule 4.
106 Constitutional Case no. 3/97
107 Constitutional Petition 1/99
108 Constitutional Petition 8/2003

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In the case of Serapio Rukundo v. A.G109 the Constitutional Court held that the remedy to amend an
offending law lies with Parliament and not with courts. This in essence also included amending a
Constitutional provision.

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

In the case of Paul Kawanga Ssemwogerere & Ors v. AG110 the Petition sought to challenge the
Constitutional (Amendment) Act of 2000 and the procedure adopted by Parliament when enacting it.

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

The Constitutional Court held that:

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

2. Constitutional amendments under chapter 18 of the Constitution are classified in three categories.
The first one falls u/art. 258, the second one u/ 259 and the last one u/art. 260. Each of those
categories has its own procedure. While those passed u/ art. 258 are the general amendments
and do not require the holding of a Referendum or approval of the Districts, those passed u/art.
259 require the support at the second and third readings in Parliament by not less than 2/3 of all
members of Parliament and have to be referred to a decision of the people and approved in a

109 Constitutional Case no. 3/97

110 Constitutional Petition no. 7/00

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referendum. Amendments passed u/art. 260 on the other hand require inter alia the approval of
the Districts;

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

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

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

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

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HUMAN RIGHTS AND THEIR ENFORCIBILITY:

The Constitution provides for human rights but only makes a few of them absolute. Thus, in the case
of Dimanche Sharon & ors v. Makerere University111 three Makerere University Seventh Day
Adventist Students brought an action in the Constitutional Court against the University seeking inter
alia a declaration U/art. 137 that the respondent policy and regulations of scheduling lectures,
mandatory tests and examinations on the seventh day are inconsistent with and in contravention of
article 20, 29(1)(c), 30 and 37 of the Constitution in respect of petitioners who practice the Seventh
Day Adventist Christian faith.

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

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

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

In the case of Zachary Olum & anor v. A.G112 the Constitutional Court held Fair hearing connotes
that in accordance with the law, a party is given the necessary opportunity to canvass all such facts
as are necessary to establish his case. The right to a fair hearing is not derogable.

111 Constitutional Cause no. 1/2003

112 Constitutional Petition 6/99.

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In the case of A.G v. Osotraco Ltd,113 the Court held that since the 1995 Constitution, the rights,
powers and immunities of the State are not immutable anymore. Article 20 enjoins everybody including
Government agencies to protect and respect individual fundamental human rights. The Constitution
has primacy over all other laws and the historic common law doctrines restricting the liability of the
State should not be allowed to stand in the way of constitutional protection of fundamental rights.

RIGHT TO BAIL:
In the case of Charles Onyango Obbo & Anor v. A.G, 114 the applicants who had been charged with
the offence of publication of false news in the Chief Magistrate’s Court at Buganda Road, Kampala,
sought to challenge inter alia the excessive amounts of bail fee fixed by the Chief Magistrate in a
criminal trial against them. The bail fee as fixed by the Chief Magistrate was at UShs. 2,000,000/=
each and bound in sureties in a non-cash each bond of UShs. 5,000,000/= each, which respective
amounts were grossly excessive under all circumstances.

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

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

Further more, that the considerations the trial court must consider before granting for bail are
contained in ss. 74 (1) & 75 of the MCA. If after considering them, it comes to the conclusion that it is
probable that the accused will appear to stand his trial, then court will determine the amount of bail
and may require sureties or even include special conditions like for example, requiring the accused to
report regularly to police or deposit his passport in court u/s.74 (1) MCA. The guide to the amount to

113 Civil Appeal 32/02

114 Criminal Miscellaneous Application 145/97

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be fixed is one of reasonableness and that the fundamental basis for bail is the same in all-criminal
cases.

Honorable Justice Solome Bossa went on to observe that the considerations laid down by the law for
Magistrates Courts and the High Court are different and the reasons appear to be that cases triable
by the High Court or offences not bailable by Magistrates Courts are of a more serious nature than
those bailable by Magistrate’s Courts.

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

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

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

In the case of Joseph Tumushabe v. A.G115 the Petitioner, a human rights activist sought to challenge
inter alia the procedure of the General Court Martial in trying suspects and its refusal to respect the
rights of prisoners in trials before the Court especially in regard to the grant of bail.

The brief background to the petition is that the Petitioner had learnt of the arrest of twenty-eight people
in the Democratic Republic of Congo by Congolese Authorities. The suspects had been handed over
to the Uganda People’s Defense Forces (UPDF). The Petitioner learnt that they were still in custody
but he could not ascertain where they were detained. Together with some relatives of the detained
persons, they files an application for a writ of habeas corpus in the High Court against the Army
Commander and Attorney General. It was returned with an indication that the twenty five persons had

115 Constitutional Petition no. 6/2004

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been remanded at Makindye Military Police Prisons on charges of Treason c/s. 25 of the Penal Code
Act except two who were under the detention of UPDF. The petitioner went on to argue that since
then, the detained persons have remained on remand and attempts to apply for bail have been refused
by the General Court-Martial. Further more, eighteen months have elapsed since their arrest and no
evidence has been adduced against them has been commenced against them nor is their any trial in
sight.

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

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

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

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

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

ILLEGAL DETENTION

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In the case of Godfrey Gahawa for a writ of habeas corpus ad subjiciednum116 the issue before High
Court was whether a person can be detained on the strength of a clearly invalid detention order. It
was alleged that the order was invalid because the President had neither signed it nor had it been
shown that the President’s power had been delegated to the Minister alleged to have signed the Order
on behalf of the President. Furthermore, that the order did not bear a public seal thereby infringing on
ss. 1 and 12 of the Public Order and Security Act. Counsel for the respondent in reply argued inter
alia that the applicant had been taken to court and charged with criminal offences under the Penal
Code Act and his detention therefore lawful. The applicant had been denied bail. The High Court held
that the detention of the applicant on the alleged authority of the order which is clearly invalid is illegal
and were it not for the criminal charge which has recently been preferred against him, an order for his
release would have been issued.

That the applicant is at liberty to renew his bail application to the Court before which he was charged
with the criminal offence.

FREEDOM OF WORSHIP

In the case of Dimanche Sharon & Ors v. the Makerere University117 the petitioners, Makerere
University Seventh Day Adventist Students brought this action against the University seeking inter alia
a declaration u/art. 137 of the Constitution that the respondent policy and regulations of scheduling
lectures, mandatory tests and examinations on the seventh day are inconsistent with and in
contravention of inter alia 30 of the Constitution in respect of petitioners who practice the Seventh Day
Adventist Christian faith.

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

I. It is trite law that human rights and freedoms must be enjoyed within limits as provided u/art.
43 of the Constitution. Consequently, human rights are not absolute but enforceable within
reasonable limits;
II. When interpreting the Constitution, all provisions of the Constitution concerning an issue are
to be considered together, each one supporting the other so as to give effect to the purpose
of the Constitution.

116 Miscellaneous Application no. 170/79

117 Constitutional Cause 1/03

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

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

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

In the case of Haruna Kanabi v. Uganda,118 the appellant, the registered proprietor of a News Paper
called ‘the Shariat’ was tried by the Chief Magistrate’s Court for publishing an article in his newspaper
in which he alleged that Rwanda was the 40 th District of Uganda and President Museveni of Uganda
had visited it at the material time to solicit for votes. The appellant was convicted of the offences of
sedition c/ss. 41 (1) (a) and 41 (1) (c) and publication of false news c/s. 50 (1) both offences u/ PCA.
He was sentenced to inter alia 5 months imprisonment and a fine. Dissatisfied with both the conviction
and the sentence, the appellant proceeded to the High Court, thus this appeal. The High Court held
that

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

(II) A seditious intent may be inferred from the liberal itself without any extrinsic Evidence
of it. If words are seditious by their expression, a seditious Intention appears without
any extrinsic evidence.

(III) The contents of the publication were calculated to bring contempt or to Excite
disaffection against the person of the President or the Government of Uganda as by

118 Criminal Appeal 72/95

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law established. It is immaterial whether they did bring about such consequences or
not.

RIGHT TO EDUCATION:

In the case of Pius Niwagaba v. The Law Development Centre119 the applicant, who was a Law
graduate from one of the private Universities, Uganda Pentecostal University (UPU), applied to the
respondent, the Law Development Centre (hereinafter referred to as ‘LDC’ or the ‘respondent’) to
pursue a Post- Graduate Diploma in Legal Practice, successful completion of which would enable him
practice law. LDC is the only public vocational professional course in the country and it is mandatory
for all lawyers desirous of practicing law to enroll with the Institution and pass the course. The
respondent declined to enroll the applicant along with other graduates from the same University and
informed them that their University had not been approved and recognized by the Law Council for
purposes of admission of its students to the Post- Graduate Bar Course at LDC. They learnt that the
only Universities that had been approved were Makerere University and Uganda Christian University,
Mukono.

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

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

119 Civil Division Application 589/05

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The High Court held inter alia that:

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

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

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

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

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

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

In the case of Dimanche Sharon & Ors v. the Makerere University120 the petitioners, Makerere
University Seventh Day Adventist Students brought this action against the University seeking inter alia
a declaration u/art. 137 of the Constitution that the respondent policy and regulations of scheduling
lectures, mandatory tests and examinations on the seventh day are inconsistent with and in
contravention of arts. Inter alia 30 of the Constitution in respect of petitioners who practice the Seventh
Day Adventist Christian faith.

120 Constitutional Cause 1/03

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The Constitutional Court held inter alia:

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

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(XII) The respondent’s duty to accommodate the Seventh Day Adventist Students Minority is
conditional on the policy on the petitioner’s rights u/art. 20 of the Constitution and is not
prejudicial to other people’s rights in the University.

RIGHT TO PROPERTY:

In the case of Pyarali Abdul Kasule Ismail v. Adrian Sibo 121 the background to the reference is that
Pyarali, an Asian who is the respondent (hereinafter referred to as the ‘plaintiff’) was up to 1972 the
registered owner of freehold land in Bulemezi (hereinafter referred to as the ‘suit property).

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

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

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

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

In the meantime, the plaintiff sued the defendant for physical possession of the suit property and one
of the issues at the trial was whether the Expropriated Properties Act no.9/83 to the extent that it
nullifies the sale of the suit property to the defendant and accordingly deprived him of his proprietary

121 Constitutional Case no. 9/97

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interest therein contravenes the Constitution of the Republic of Uganda and is thereby null and void
thus this reference.

The Constitutional Court held that:

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

(4) The formula for compensation provided in s.11 (4) of Act 9/82 could not guarantee reasonable
compensation to an owner of property deprived of the property by the operation of the Act and was
therefore to that extent in conflict with art. 13 of the 1967 Constitution and would have been null and
void if the 1967 Constitution was still in operation.

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

In the case of AG v. Osotraco Ltd122

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

The brief background to the appeal is that the respondent claimed to be the registered proprietor of
the suit property. The suit property was however at the time of acquisition and thereafter occupied

122 Civil Appeal no. 32/02

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by the Ministry of Information who refused to vacate despite the request to do so. The Ministry claimed
the property to be theirs thus the suit against them.

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

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

In the case of Phillip Karugaba v. AG 123 the petition sought to challenge r. 15 of the Rules of the
Constitutional Court (Petition for Declarations U/art. 137 of the

Constitution), Directions, 1996 as being inconsistent with article 26 (2) of the Constitution for depriving
the estate of the deceased person of his right to property. .

(I) The Constitutional Court held that a judgment of court is property. The expression “ chose in
action” is used to describe all personal rights of property which can only be claimed or
enforced by action and not by taking physical possession;
(II) A right to file a Constitutional Petition is not property in terms of art. 26 (2). It is only a legal
action of a special nature. Such right is personal and cannot be assigned. It is not property
capable of being compulsory acquired and taken possession of by anybody;
(III) Where the estate of the deceased petitioner seeks redress, the action can be instituted in a
court of competent jurisdiction and if a question of constitutional interpretation arises, the
same can be referred to this court U/art. 137 (5) of the Constitution;
(IV) The right of proceeding in a court of law by a deceased person to recover pecuniary damages
for tortuous wrongs inflicted on her can be pursued by her estate for the benefit of her
dependants in a competent court under the Law Reform (Miscellaneous. Provisions) Act, Cap.
74. This right of action does not have to abate even when the main action commenced by the
deceased abates upon her death;

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(V) A chose in action, which is property, is a right of action in a court of law to recover a sum of
money or pecuniary damages for tortuous wrongs or non-performance of a contract. This right
of action need not be translated into a judgment to be property;
(VI) Rule 15 of the Rules of the Constitutional Court (Petition for Declarations U/art. 137 of the
Constitution) Directions 1996 is mandatory. A petition abates upon the death of a sole
petitioner;
(VII) In order for the petitioner to bring himself within the ambit of article 26, he bears the burden
to prove that he is a person who has an interest over the property either individually or in
association with the deceased. He has also to show that he was deprived of his property
compulsorily U/r. 15 and that there was no provision made for prompt payment of fair and
adequate compensation.
In the case of Salvatori & anor v. AG124 the petitioner and (another since deceased and therefore
no longer a party to the petition) were charged with practicing witchcraft c/s. 3 (3) of the Witchcraft
Act. He sought to challenge its constitutionality as inter alia depriving him of his right to property.

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

THE RIGHT TO A FAIR HEARING:

The right to a fair hearing has a number of ingredients. Provided for under article 28 of the constitution,
the right comprises of a fair, speedy and public hearing before an independent and impartial court or
tribunal established by law. The article goes on to stipulate the presumption of innocence. An accused
person also has a right to be informed in a language that he understands of the nature of the offence,
be afforded adequate time and facilities for the preparation of his/ her defense, be permitted to appear
before the court in person or at that person’s own expense by a lawyer of his/ her choice, legal
representation at the expense of the State in capital cases, the assistance of an interpreter and
facilities to examine witnesses and obtain the attendance of other witnesses before the court….
Thus, in the case of Salvatori & Nor v. AG125 the petitioner and (another since deceased and
therefore no longer a party to the petition) were charged with practicing witchcraft c/s. 3 (3) of the
Witchcraft Act, Cap. 108, pleaded guilty and was accordingly sentenced to twenty-two months
imprisonment and banished from his home for 10 years after serving the prison sentence. His appeal
to the Chief Magistrate was dismissed. The Petitioner thus brought this Petition challenging his

124 Constitutional Petition no. 2/97

125 Constitutional Petition no. 2/97

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conviction, sentence and Exclusion Order which was made pursuant to s. 7 of the Act as being
inconsistent and in contravention of arts.21 (1) & (2), 24, 25, 28 (1) & 2, 29 (1), (b) & (c) & (2) and 29
(2) of the Constitution. He particularly attacked the Exclusion Order as depriving him of his properties
and denying him the right to reside and settle in any part of Uganda.

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

The Constitutional Court held that:

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

The case of Suzan Kigula & 416 v. AG126 one of the issues before court was whether the death
penalty process was a form of torture, cruel, inhuman or degrading punishment. The petitioners, all of
whom were at the time of filing the petition on death row, in their petition contended inter alia that the
imposition of the death sentence on them was unconstitutional for being inconsistent with arts. 24 and
44 of the Constitution. The petitioners went on to contend in the first alternative that the various
provisions of the laws of Uganda, which provide for mandatory death sentence, are inconsistent with
arts. inter alia 24 of the Constitution. That though the Constitution guarantees protection of the rights
and freedoms such as, equal treatment before the law, the right to a fair hearing etc, the provisions
which provide for mandatory death sentence contravene those Constitutional provisions. That a
convict who is sentenced under such a mandatory provision is denied the right to appeal against
sentence only. They also argued in the second alternative that a long delay between the
pronouncement of the death sentence and the carrying out of the sentence allows for a death
syndrome to set in. That carrying out of the death sentence after such a long delay constitutes a cruel,
inhuman and degrading treatment prohibited by arts.24 and 44 of the Constitution.

126 Constitutional Petition no. 6/03

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In the final alternative, the petitioners contended that section 99 (1) of the Trial on Indictments Act
(Cap. 23 of the Laws of Uganda) which provides for hanging as the legal mode of carrying out a death
sentence was cruel, inhuman and degrading as it contravenes arts.24 and 44 of the Constitution.
The Constitutional Court held inter alia that :

(1) It is a well known rule of interpretation that to take away a right given by common law or statute,
the legislature should do that in clear terms devoid of any ambiguity. The right to life is not included
in art. 44 on the list of the non-derogable rights. Therefore, arts. 24 (dealing with freedom from
torture, cruel, inhuman or degrading treatment or punishment) and 44 could not have been
intended to apply to the death penalty permitted in art. 22 (1). The imposition of the death penalty
therefore does not constitute cruel, inhuman or degrading punishment and the various provisions
of the laws of Uganda that prescribe the death sentence are not inconsistent with or in
contravention of arts. 24 and 44 or any provision of the Constitution;
(2) A fair hearing must basically mean hearing both sides. Refusing or denying a convict facing a
death sentence to be heard in mitigation when those facing lesser sentences are allowed to be
heard in mitigation is clearly unjustifiable discrimination and unfair. It is neither consistent with the
principles of equality before and under the law guaranteed in art. 21, nor with the right to a fair
hearing guaranteed in arts. 22 (1), 28 and entrenched in art. 44 (c);
(3) The procedure in s. 98 of the Trial in Indictments Act that denies the court opportunity to inform
itself on any mitigating factors regarding the sentence of death deprives the court the chance to
exercise its discretion to determine the appropriateness of the sentence. It compels the Court to
impose the sentence of death merely because the law directs it to do so. This is an intrusion by
the legislature into the realm of the Judiciary. For the legislature to define the offence and prescribe
the only sentence which the court must impose on conviction without affording the court
opportunity to exercise its discretion to determine the appropriateness of the sentence is clearly a
violation of the principle of separation of powers;
(4) The generous and purposive interpretation of the provision would require exercise of discretion by
the appellant court on whether or not to confirm the death sentence. This would be done upon
consideration of the circumstances of the offence and of the offender since the circumstances of
murders or aggravated robbery and of their offenders are not exactly the same. Those differences
determine the appropriateness of the sentence to be imposed in each case. But again, the
procedure in s. 98 of the Trial on Indictments Act that does not permit the convict under a
mandatory sentence of death provision to be heard in mitigation before he or she is sentenced or
permits court to inform itself on the appropriateness of the sentence to pass in the case of
mandatory death sentence contravenes art. 22 (1) of the Constitution;
(5) S. 132(1) (b) of the Trial on Indictments Act, Cap. 23 which makes provision for an appeal to the
Court of appeal against the sentence alone imposed by the High Court, other than one fixed by

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law denies a convict who is also sentenced under the provisions where the sentence is fixed by
law to appeal against sentence only. Yet art. 21 (1) of the Constitution guarantees equal protection
before and under the law. That there is no justifiable reason for denying a convict who is sentenced
to a sentence fixed by law to appeal against sentence only. For example, it forbids convicts of the
death sentence for murder or aggravated robbery to appeal against sentence but allows others
whose sentences are not fixed by law. This is repugnant to the principle of equality before the law
and fair trial;
(6) Execution by hanging may be cruel but arts. 24 and 44(a) were not intended to apply to the death
sentence permitted in art. 22 (1) so that implementing or carrying out of the death penalty by
hanging cannot be held to be cruel, inhuman or degrading. Arts. 24 and 44 (a) do not apply to it
and punishment by its nature must inflict some pain and unpleasantness, physically or mentally to
achieve its objective. Therefore, s. 99 (1) of the Trial on Indictments Act was constitutional as it
operationalises art. 22 (1) and therefore not inconsistent with arts. 24 and 44 (a);
(7) In regard to the issue of the lapse of time before the death sentence is carried out, the condemned
prisoners did not lose all their constitutional rights and freedoms except those rights and freedoms
that have inevitably been removed from them by law, either expressly or by necessary implication.
The condemned prisoners are entitled to the protection of arts. 24 and 44 (a) of the Constitution
in respect of their treatment while they are in confinement before execution. They are not to be
subjected to cruel, inhuman or degrading treatment. The conditions and the fear that the convicts
on death row live in portray a very grim picture of the conditions in the condemned section of Luzira
Prison. They are demeaning physical conditions. Such conditions coupled with the treatment
meted out to the condemned prisoners during their confinement are not acceptable by Ugandan
standards and also by the civilized international communities. Inordinate delays in such conditions
indeed constitute cruel, inhuman or degrading treatment prohibited by arts. 24 and 44 (a) of the
Constitution of Uganda;
(8) To determine inordinate delay, the period when the condemned prisoners has spent on the death
row should start from the time the convict’s sentence has been confirmed by the highest appellant
court for such process is mandatory. During that time, the appellant has hope of his conviction and
sentence being reversed. It is the time taken between the confirmation of his or her sentence and
execution, where the condemned prisoners has virtually lost hopes of surviving execution, that
should determine whether or not there has been an inordinate delay;
(9) The Constitution sets up the Advisory Committee set up u/art. 121 of the Constitution to advise
the President in the exercise of his discretion on prerogative of mercy. The article is
operationalised by s. 102 of the Trial on Indictments Act and s. 34 of the Prisons Act that provide
procedures to be followed to seek prerogative of mercy. Neither the Constitution, nor those
statutory provisions have set up a time frame within which the prerogative of mercy process should
be completed. The prerogative of mercy is an executive process that comes after the judicial

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process is concluded. It is important that the procedure seeking pardon or commutation of the
sentence should guarantee transparency and safeguard against delay;

The spirit of the constitution demands that whatever is to be done under it affecting the Fundamental
Rights and Freedoms must be done without unreasonable delay and s.34 (2) of the Interpretation Act,
Cap 3 provides that where no time is prescribed or allowed within which anything shall be done, that
thing shall be done, without unreasonable delay. A delay beyond three years after the condemned
prisoner’s sentence has been confirmed by the highest appellant court would tend towards
unreasonable delay. Therefore, the condemned prisoners who have been on death row for five years
and above after the appellate courts had confirmed their sentences had waited longer than
constitutionally permissible

FREEDOM FROM TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT:

Article 24 of the Constitution lays down provisions for respect for human dignity and protection from
inhuman treatment. Aspects of this right have been ably discussed by the different courts and
tribunals. Interestingly, the right has aspects of other rights and cannot be discussed independent of
these rights. The case of Suzan Kigula & 416 v. AG 127 one of the issues before court was whether
the death penalty process was a form of torture, cruel, inhuman or degrading punishment. The
petitioners, all of whom were at the time of filing the petition on death row, in their petition contended
inter alia that the imposition of the death sentence on them was unconstitutional for being inconsistent
with arts.24 and 44 of the Constitution. The petitioners went on to contend in the first alternative that
the various provisions of the laws of Uganda, which provide for mandatory death sentence are
inconsistent with arts. inter alia 24 of the Constitution. They also argued in the second alternative that
a long delay between the pronouncement of the death sentence and the carrying out of the sentence
allows for a death syndrome to set in. That carrying out of the death sentence after such a long delay
constitutes a cruel, inhuman and degrading treatment prohibited by arts.24 and 44 of the Constitution.

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

127 Constitutional Petition no. 6/03

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(dealing with freedom from torture, cruel, inhuman or degrading treatment or punishment) and 44
could not have been intended to apply to the death penalty permitted in art. 22 The imposition of the
death penalty therefore does not constitute cruel, inhuman or degrading punishment and the various
provisions of the laws of Uganda that prescribe the death sentence are not inconsistent with or in
contravention of arts. 24 and 44 or any provision of the Constitution;

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

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

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

The Court also observed that Constitution sets up the Advisory Committee set up u/art. 121 of the
Constitution to advise the President in the exercise of his discretion on prerogative of mercy. The
article is operationalised by s. 102 of the Trial on Indictments Act and s. 34 of the Prisons Act that
provide procedures to be followed to seek prerogative of mercy. Neither the Constitution, nor those

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statutory provisions have set up a time frame within which the prerogative of mercy process should
be completed. The prerogative of mercy is an executive process that comes after the judicial process
is concluded. It is important that the procedure seeking pardon or commutation of the sentence should
guarantee transparency and safeguard against delay. The spirit of the constitution demands that
whatever is to be done under it affecting the Fundamental Rights and Freedoms must be done without
unreasonable delay and s.34 (2) of the Interpretation Act, Cap 3 provides that where no time is
prescribed or allowed within which anything shall be done, that thing shall be done, without
unreasonable delay. A delay beyond three years after the condemned prisoner’s sentence has been
confirmed by the highest appellant court would tend towards unreasonable delay. Therefore, the
condemned prisoners who have been on death row for five years and above after the appellate courts
had confirmed their sentences had waited longer than constitutionally permissible.

EQUALITY BEFORE THE LAW:

The right to equality before the law also has different aspects. Provided for under article 21 of the
Constitution,

The case of Suzan Kigula & 416 v. AG128 one of the issues before court was whether the death
penalty process was a form of torture, cruel, inhuman or degrading punishment. The petitioners, all of
whom were at the time of filing the petition on death row, in their petition contended inter alia that the
imposition of the death sentence on them was unconstitutional for being inconsistent with arts. 24 and
44 of the Constitution. The petitioners went on to contend in the first alternative that the various
provisions of the laws of Uganda, which provide for mandatory death sentence are inconsistent with
arts. inter alia 24 of the Constitution. That though the Constitution guarantees protection of the rights
and freedoms such as, equal treatment before the law, the right to a fair hearing etc, the provisions
which provide for mandatory death sentence contravene those Constitutional provisions. That a
convict who is sentenced under such a mandatory provision is denied the right to appeal against
sentence only. They also argued in the second alternative that a long delay between the
pronouncement of the death sentence and the carrying out of the sentence allows for a death
syndrome to set in. That carrying out of the death sentence after such a long delay constitutes a cruel,
inhuman and degrading treatment prohibited by arts.24 and 44 of the Constitution.
In the final alternative, the petitioners contended that section 99 (1) of the Trial on Indictments Act
(Cap. 23 of the Laws of Uganda) which provides for hanging as the legal mode of carrying out a death
sentence was cruel, inhuman and degrading as it contravenes arts.24 and 44 of the Constitution.

128 Constitutional Petition no. 6/03

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The Constitutional Court held inter alia that :

(10) It is a well known rule of interpretation that to take away a right given by common law or statute,
the legislature should do that in clear terms devoid of any ambiguity. The right to life is not included
in art. 44 on the list of the non-derogable rights. Therefore, arts. 24 (dealing with freedom from
torture, cruel, inhuman or degrading treatment or punishment) and 44 could not have been
intended to apply to the death penalty permitted in art. 22 (1). The imposition of the death penalty
therefore does not constitute cruel, inhuman or degrading punishment and the various provisions
of the laws of Uganda that prescribe the death sentence are not inconsistent with or in
contravention of arts. 24 and 44 or any provision of the Constitution;
(11) A fair hearing must basically mean hearing both sides. Refusing or denying a convict facing a
death sentence to be heard in mitigation when those facing lesser sentences are allowed to be
heard in mitigation is clearly unjustifiable discrimination and unfair. It is neither consistent with the
principles of equality before and under the law guaranteed in art. 21, nor with the right to a fair
hearing guaranteed in arts. 22 (1), 28 and entrenched in art. 44 (c);
(12) The procedure in s. 98 of the Trial in Indictments Act that denies the court opportunity to inform
itself on any mitigating factors regarding the sentence of death deprives the court the chance to
exercise its discretion to determine the appropriateness of the sentence. It compels the Court to
impose the sentence of death merely because the law directs it to do so. This is an intrusion by
the legislature into the realm of the Judiciary. For the legislature to define the offence and prescribe
the only sentence which the court must impose on conviction without affording the court
opportunity to exercise its discretion to determine the appropriateness of the sentence is clearly a
violation of the principle of separation of powers;
(13) The generous and purposive interpretation of the provision would require exercise of discretion
by the appellant court on whether or not to confirm the death sentence. This would be done upon
consideration of the circumstances of the offence and of the offender since the circumstances of
murders or aggravated robbery and of their offenders are not exactly the same. Those differences
determine the appropriateness of the sentence to be imposed in each case. But again, the
procedure in s. 98 of the Trial on Indictments Act that does not permit the convict under a
mandatory sentence of death provision to be heard in mitigation before he or she is sentenced or
permits court to inform itself on the appropriateness of the sentence to pass in the case of
mandatory death sentence contravenes art. 22 (1) of the Constitution;
(14) S. 132(1) (b) of the Trial on Indictments Act, Cap. 23 which makes provision for an appeal to
the Court of appeal against the sentence alone imposed by the High Court, other than one fixed
by law denies a convict who is also sentenced under the provisions where the sentence is fixed
by law to appeal against sentence only. Yet art. 21 (1) of the Constitution guarantees equal

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protection before and under the law. That there is no justifiable reason for denying a convict who
is sentenced to a sentence fixed by law to appeal against sentence only. For example, it forbids
convicts of the death sentence for murder or aggravated robbery to appeal against sentence but
allows others whose sentences are not fixed by law. This is repugnant to the principle of equality
before the law and fair trial;
(15) Execution by hanging, may be cruel but arts. 24 and 44(a) were not intended to apply to the
death sentence permitted in article 22 (1) so that implementing or carrying out of the death penalty
by hanging cannot be held to be cruel, inhuman or degrading. Articles 24 and 44 (a) do not apply
to it and punishment by its nature must inflict some pain and unpleasantness, physically or
mentally to achieve its objective. Therefore, s. 99 (1) of the Trial on Indictments Act was
constitutional as it operationalises article 22 (1) and therefore not inconsistent with articles 24 and
44 (a);
(16) In regard to the issue of the lapse of time before the death sentence is carried out, the
condemned prisoners did not lose all their constitutional rights and freedoms except those rights
and freedoms that have inevitably been removed from them by law, either expressly or by
necessary implication. The condemned prisoners are entitled to the protection of arts. 24 and 44
(a) of the Constitution in respect of their treatment while they are in confinement before execution.
They are not to be subjected to cruel, inhuman or degrading treatment. The conditions and the
fear that the convicts on death row live in portray a very grim picture of the conditions in the
condemned section of Luzira Prison. They are demeaning physical conditions. Such conditions
coupled with the treatment meted out to the condemned prisoners during their confinement are
not acceptable by Ugandan standards and also by the civilized international communities.
Inordinate delays in such conditions indeed constitute cruel, inhuman or degrading treatment
prohibited by articles 24 and 44 (a) of the Constitution of Uganda;
(17) To determine inordinate delay, the period when the condemned prisoners has spent on the
death row should start from the time the convict’s sentence has been confirmed by the highest
appellant court for such process is mandatory. During that time, the appellant has hope of his
conviction and sentence being reversed. It is the time taken between the confirmation of his or her
sentence and execution, where the condemned prisoners has virtually lost hopes of surviving
execution, that should determine whether or not there has been an inordinate delay;
(18) The Constitution sets up the Advisory Committee set up u/art. 121 of the Constitution to advise
the President in the exercise of his discretion on prerogative of mercy. The article is
operationalised by s. 102 of the Trial on Indictments Act and s. 34 of the Prisons Act that provide
procedures to be followed to seek prerogative of mercy. Neither the Constitution, nor those
statutory provisions have set up a time frame within which the prerogative of mercy process should
be completed. The prerogative of mercy is an executive process that comes after the judicial

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process is concluded. It is important that the procedure seeking pardon or commutation of the
sentence should guarantee transparency and safeguard against delay;

The spirit of the constitution demands that whatever is to be done under it affecting the Fundamental
Rights and Freedoms must be done without unreasonable delay and s.34 (2) of the Interpretation Act,
Cap 3 provides that where no time is prescribed or allowed within which anything shall be done, that
thing shall be done, without unreasonable delay. A delay beyond three years after the condemned
prisoner’s sentence has been confirmed by the highest appellant court would tend towards
unreasonable delay. Therefore, the condemned prisoners who have been on death row for five years
and above after the appellate courts had confirmed their sentences had waited longer than
constitutionally permissible

THE RIGHT TO LIFE

The right to life is one of the most respected rights in the Constitution. The debate on what constitutes
these right ranges on with many scholars arguing that it extends to all aspects that constitute an
adequate and reasonable life. Thus, in the case of Salvatori Abuki & Anor v. AG129 the Constitutional
Court of Uganda held the deprivation of shelter, food and essential sustenance as the consequence
of Exclusion Order under the Witchcraft Act (now repealed) as threatening the right to life or to leading
to the loss of the right to life and therefore not permissible under the Constitution.

Article 22 of the Constitution does not however makes the right to life absolute but does give instances
where it is lawful to intentionally deprive a person of this right. These instances are close cut and are
only limited to cases of execution of a sentence passed in a fair trial by a court of competent jurisdiction
in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been
confirmed by the highest appellant court130. There are however instances under the Laws of Uganda
where an excuse can be afforded for the deprivation of life. Some of these instances appear to permit
the intentional deprivation of the right to life. One qualifying factor however is that the killing is deemed
unlawful. Thus, under S. 192 of the Penal Code Act, 131 if the killing that is unlawful is done under
circumstances which but for the section would constitute murder, such killing done in the heat of
passion caused by sudden provocation as defined in S. 193 and before there is time for his/ her
passion to cool, the offence committed is reduced to manslaughter. Other defenses that might excuse

129 Constitutional Petition no. 2/97

130 See Salvatori Abuki & Anor v. Uganda Constitutional Petition no. 2/97. Actually, the unlawful intentional
deprivation of the right to life with malice aforethought is termed as murder and is punishable under S. 189 of
the Penal Code Act, Cap. 120, Laws of Uganda.
131 Laws of Uganda, Cap. 120

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the unlawful deprivation of the right to life include mistake of fact,132 insanity,133 intoxication,134
compulsion135 and the defense of person/property.136 The operation of these defenses must however
be limited to the meaning and scope137 attached to them under the different provisions of the Penal
Code Act. The death penalty is the way the execution of a court sentence geared towards depriving
the individual of the right to life is carried out. Court in the case of Suzan Kigula & Ors v. A.G 138 held
the death penalty as stipulated under art. 22 of the Constitution as a recognized exception to the right
to life and therefore Constitutional.
The same case shows that death penalty although has its advocates has of recent been judiciously
challenged. Thus, in the case of the question of the constitutionality of the death penalty was
addressed. In this case, the petitioners, all of whom were on death row sought to challenge the death
sentence as unconstitutional. The Constitutional Court held inter alia that in regard to the issue of the
lapse of time before the death sentence is carried out, the condemned prisoners did not lose all their
constitutional rights and freedoms except those rights and freedoms that have inevitably been
removed from them by law, either expressly or by necessary implication. The spirit of the constitution
demands that whatever is to be done under it affecting the Fundamental Rights and Freedoms must
be done without unreasonable delay and s.34 (2) of the Interpretation Act, Cap 3 provides that where
no time is prescribed or allowed within which anything shall be done, that thing shall be done, without
unreasonable delay. A delay beyond three years after the condemned prisoner’s sentence has been
confirmed by the highest appellant court would tend towards unreasonable delay. Therefore, the
condemned prisoners who have been on death row for five years and above after the appellate courts
had confirmed their sentences had waited longer than constitutionally permissible.

139
Another case attacking the death penalty was filed by the Uganda Law Society , the application
sought to challenge the constitutionality of the National Resistance Statute no.3/92 in so far as it
provides for the passing of death sentences at all or without an appeal to the Supreme Court. The
applicants are thereby seeking for an Order stopping the operation of s. 92-(1) (a) of the Statute.
The Constitutional Court held that:

Death is final and puts an end to everything. However, one has to balance it with higher objectives the
punishment is intended to achieve. The necessity for the death sentence in a field operation cannot

132 Ibidem, S. 9
133 Ibidem, S. 11
134 Ibidem, S. 12
135 Ibidem, S. 14 & 17
136 Ibidem, S. 15
137 For example, under S. 12 (1) of the Penal Code Act, intoxication is only a defence to a criminal charge within

the exceptions afforded by the section.

138 Constitutional Petition no. 6/03
139 The Uganda Law Society v. AG, Constitutional Application no. 7/03

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be underestimated for in field operations, tough decisions and actions are sine quo non. Therefore,
on a balance of convenience, it is not proper to suspend the operation of s.92 of the NRA Statute.

Civilian political matters cannot be mixed up with security military matters and the court cannot apply
the same yardstick for both.

It is perhaps of importance to also point out that the right to self-determination and the right to die with
dignity has been advocated for. These rights usually come into play in cases of terminally ailing
persons who prefer to have their lives taken away.

The right of the unborn child is protected under article 22 (2). Such right is however qualified by the
authority of the law.

THE RIGHT TO HABEAS CORPUS:

Habeas corpus is a constitutional right that secures the right to be tried according to the law or to be
released. The writ of habeas corpus is used to question the legality of restraint and thereby facilitates
the release of persons in unlawful custody.140

Provisions relating to the right to habeas corpus are entrenched in articles 23 (9) and 44 (d) of the
Constitution. This right is non-derogable,141 inviolable and cannot be suspended.142 A writ for habeas
corpus is granted in two stages. Once a decree nisi has been granted, it has to be returned by the
party to whom it is directed.

Whereas the application for the writ may be made from the moment of arrest, where there have been
valid proceedings subsequent to the arrest, which were offered in justification of detention, a prisoner
will not get redress by habeas corpus. Court has jurisdiction to deal with a person before it no matter
how improper the procedure that brought that person before it. This was held in the case of Re: A
reference from the High Court of Uganda and Re: Sheik Abdul K. Sentamu & Anor,143 where an
application for a writ of habeas corpus subjuciendum against the Inspector General of Police for the
applicant’s production before court was lodged. Counsel for the applicants averred that the applicants
had been arrested in various places by the police between May 2 1998 and May 25, 1998, detained
in different places and had not been charged and produced before court c/art.23 (4) (b) of the

140 A reference from the High Court of Uganda and Re: Sheik Abdul K. Sentamu & Anor, Constitutional Petition
no.7/98
141 See article 44 (d)
142 See article 23 (9)
143 Constitutional Petition no. 7/98

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Constitution. The High Court granted them an order nisi on June 8, 1998 returnable on June 12, 1998.
The writ was extended and returned several times but the applicants were not produced in court. The
applicants were later charged with the offence of treason.

Counsel for the applicants submitted that since the applicants were charged after the order nisi was
made, there had been a violation of art.23 (5) (b) of the Constitution. He therefore requested for a
reference on the matter to the Constitutional Court, which was granted u/art.137 (5) (b) of the
Constitution.

THE RIGHT TO BAIL:

The law that governs bail in Uganda is contained in art 23-(6) (a), (b) and (c) of the Constitution (as
amended by Act 11/2005). All other laws on bail in this country that are inconsistent with or contravene
this article are null and void to the extent of their inconsistency. This was pointed out in the case of
Joseph Tumushabe v AG.144 The same Constitutional case recognizes the right to bail as a
fundamental right guaranteed by the Constitution. The Constitutional Court in the same case went on
to find its basis in art. 28 of the same Constitution, which contains the concept of presumption of
innocence and the right of the accused to a fair and speedy trial before an independent and impartial
court or tribunal, established by law. ‘These two principles are part of the right to a fair hearing, which
is declared inviolably u/ art. 44 of the Constitution. The idea is that a person who is presumed innocent
and who is entitled to a speedy trial should not be kept behind the bars for unnecessarily long before
trial. It is also the rationale of art. 23 of the Constitution which spells out the right to liberty.’

Under article 23 (6) (a-c), provisions are made for the release of persons arrested in respect of
criminal offences to:

(a) To apply to the court to be released on bail on such conditions as the court considers reasonable;
(b) If the offence is triable by the High Court and a subordinate court, such person has the right to be
released on bail on such conditions as the court considers reasonable if he/ she has been on
remand in custody in respect of the offence before trial for 60 days;
The position prior to the 1995 Constitution was a bit different and all that mattered was that the person
must have been brought to court within a reasonable time. It therefore appears that the High Court
then had the jurisdiction to grant bail at any time so long as it considered that a reasonable time had
elapsed. Thus, in the case of Uganda v. Muhamudu Sebi145 the applicant on trial for aggravated

144 Constitutional Petition 6/04

145 Criminal Session 227/75

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robbery sought to inter alia apply for bail. The High Court held inter alia that the it had power at any
stage of the proceedings to grant bail. This power, it held, is not restricted. ‘However, in considering
granting bail, it has to consider certain guiding principles. In murder cases, bail should be granted only
in exceptional circumstances. The applicant is presently facing a charge of aggravated robbery, which
carries a mandatory sentence of death on conviction. He is also going to face a murder trial. In these
circumstances, the temptation to escape in order to escape the supreme penalty is great. The fact
that he is a soldier in the army is no guarantee.’ Today, in cases involving applications for the writ of
habeas corpus, the High Court has jurisdiction to grant bail to the accused person up to when the writ
of habeas corpus is returned with a charge146.

(c) If the offence is triable by the High Court alone and the suspect has been remanded in custody for
120 days before the case is committed to the High Court, it is mandatory for the court to release such
person on such conditions as the court considers reasonable. It is however important to note that
Article 23 (6) (c) cannot apply to a General court-martial where there are no committal proceedings. It
applies to the Magistrates Court where the offence charged is triable ONLY by the High Court and the
accused person has not been committed for trial in the High Court for 360 days. This was the observed
in the case of Joseph Tumushabe v. AG147

The importance of the observance of the provisions relating to bail cannot be over- emphasized. Thus,
in the case of Joseph Tumushabe v AG148 the Petitioner sought to challenge inter alia the procedure
of the General Court Martial in trying suspects and its refusal to respect the rights of prisoners in trials
before the Court especially the right to bail.

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

146 Joseph Tumushabe v. AG, Constitutional Petition no. 6/04

147 Ibidem
148 Ibidem

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The Constitutional Court held that the accused people were entitled u/ art. 23 (6) (b) of the Constitution
to be released on bail after 120 days from the date they were remanded in custody by the General
Court Martial. Therefore, the act of the respondent in keeping them in detention beyond that period is
unconstitutional. The Constitutional Court further observed that even if a person is kept on remand by
reason that a military court to try him/ her has been convened, such a person is nevertheless entitled
to be released on bail after the expiry of 120 days as commanded by art. 23(6)(b) of the Constitution.

Finally, it is also of great significance to point out that Art. 23 (a), (b) and (c) of the Constitution apply
to all civil courts as well as to all Court Martials.149

149 Ibidem

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