CONSTITUTIONAL LAW NOTES

PREPARED BY MR ATWINE JOSEPH

Atwinejoseph0703559090@[Link]

CONTACT HOURS: 64 HRS

OBJECTIVES OF THE COURSE UNIT:

Constitutional Law intends to impart skills, knowledge, attitudes and values in three major areas.
These include:

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

EXPECTED LEARNING OUTCOME(S)

At the end of the semester learners should appreciate Constitutional, social and political theory,
values and principles with specific reference to Uganda;

The learners should get to acknowledge and appreciate the significance of the rules of law
especially constitutional rules;

The learners should be able appreciate the role of constitutional theory, principles, doctrines, and
law or rules in political, social, cultural and economic organization, as well as in nationhood and
development in Uganda.

Learners should also be in a position to critically analyze and interrogate the role of
constitutional and related administrative law regarding the machinery of government.

COURSE UNIT CONTENT

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

1. Constitutions in the Ugandan context

2. The African experience in constitutionalism
3. Definition of constitutional law
4. General principles of the constitution
5. Nature of the constitution
6. Sources of the constitution
7. Classification of the constitutions
8. The distinction between dictatorship and democratic government
9. Rule of law
10. Separation of powers doctrine
11. The doctrine of checks and balances
12. The executive arm of government
13. The legislature
14. The concept of ministerial responsibility
15. The judiciary and the exercise of judicial powers
16. Interpretation of the constitution
17. Citizenship
18. Human rights

CONSTITUTIONS IN THE UGANDAN CONTEXT

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:

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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 OF THE REPUBLIC OF UGANDA:

(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)

REVIEWING THE AFRICAN EXPERIENCE IN CONSTITUTIONALISM

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 60 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

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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.

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.

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

(i) 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.

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

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.

(iii) 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)

(iv) The electorate has 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.

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(v) 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;

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

(vi) Militarism is yet another factor affecting the growth of Constitutionalism in

Africa. The issues involved here are:

Constitutional revivalism on the African continent:

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.

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. Furthermore, 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.

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.

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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 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. 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.

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).

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
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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

WHY DO WE STUDY CONSTITUTIONAL LAW?

i. As already pointed out, the subject aims at tracing the bearing of the actions of the
different personalities in the destiny of a nation.
ii. 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.
iii. 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.
iv. Help students make better decisions that steer the destiny of a nation.
v. For constitutional law practice.

WHAT IS A CONSTITUTION?

According to Osborne’s concise law dictionary 9th edition, a constitution is a document

embodying those laws, instructions or customs which combine to create a system of government
by which the community is related

It is also a document including the laws, instructions or customs and aspirations of the people of
the nation.

According to wade and Phillip’s (authors)a constitution is a document having special legal
sanctity (power) which sets out the frame work and principle functions of the organs of the state.

According to G.W. Kanyeihamba (Constitutional law and Government 1975 Edition) a

constitution of a state consists of basic and fundamental laws which the inhabitants of a state
consider to be essential for their governance and wellbeing.

It lays down political and other state institutions and distributes power among them and puts
limitations on the exercise of those powers.

In many countries, the constitution is regarded as the supreme law of the land. In other wards it
has higher status with other laws of a state.

The constitution usually does not contain detailed rules on how different institutions normally
name certain things which should be done in a country e.g. the constitution will provide for

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regular free and fair elections but the rules governing nations are found in particular statutes or
particular laws for example the Parliamentary Elections Act and the rules.

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

WHY IS A CONSTITUTION DESCRIBED AS FUNDAMENTAL?

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 void.

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: -

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

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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 an important concept therein,

enshrining 3 attributes, viz.:

i. A defined territory (distinct borders),

ii. A people in terms of nationality and sometimes citizenship and
iii. 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. Thus, in the case of Joseph Tumushabe v. A.G, 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. 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 & Ors. 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.

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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.

(2) 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.

QUALITIES OF A GOOD CONSTITUTION

(a) 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.

(b) 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.

(c) Flexibility in the provisions for system of amendment: Some constitution can be amended
by a simple majority in parliament, other by referendum, other by special majority in Parliament

(d) 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.

(e) 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.

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(f) Must provide for the basic structure and organs of the Government for the state that it
is intended to apply to.

SOURCES OF THE CONSTITUTION (SOURCES OF CONSTITUTIONAL LAW)

Written constitutions: 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:

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 is sources of the constitution for example:

1) The Magna Cata: This was an Act of parliament in 1215. It is regarded as the 1st
constitutional statute in Britain. It was the 1st attempt to limit the absolute power enjoyed
by the feudal kings. Some of the provisions set down by the charter were the following: -
i. The rights of various classes of people in the community. (Barons - Landlord
and the Monarch);
ii. Trial by a Jury of one's peer;
iii. Limitation on the power of government in matters of taxation;
iv. 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".

2) 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.
i. All laws could only be made with the consent of parliament;
ii. Any form of taxation without the consent of parliament was illegal;
iii. The people had a right to petition to the king for redress of grievances;
iv. Parliament was guaranteed freedom of speech and debate;
v. No army could be raised without the consent of government;
vi. Elections for members of parliament to be free;

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vii. No excessive bail should be demanded;
viii. Nobody should be deprived of his property unless as a consequence of a
punishment conferred in legal proceedings;
ix. Subjects who are Protestants may have arms as protection.
x. "The intention was not to make constitution but to establish the sovereignty of parliament
as a representative body of people".

3. 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.

Ordinary legislation is an important source of Constitutional law as it sets out in many different
respects specific rights, duties and obligations.

4. 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 Ltd, 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. 137where it can later declare
these laws as unconstitutional.

In the case of Kyamanywa Simon v. Uganda, 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

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Court, which has the original jurisdiction in these 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.

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.”

Where there are unwritten Constitutions, Conventions are important e.g. in Britain, once the
Prime

If a minister loses an 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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7. 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
two terms. Frenklin Delano Roosevelt served four terms, (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, 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 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

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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 Works, 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 [Link] 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.

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.

CLASSIFICATION ACCORDING TO FORM:

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

1) WRITTEN CONSTITUTIONS

A written constitution is one whose fundamental rules and principles are set out in a single or a
few authoritative documents. Its key characteristics are the following:

Documentary Form

The constitution is contained in a written document (or documents) clearly setting out the
structure of the state, powers of government, and rights of citizens. Example: The Constitution of
the Republic of Uganda.

Supremacy of the Constitution

A written constitution is the supreme law of the land. All other laws derive their validity from it,
and any law inconsistent with it is void to the extent of the inconsistency. In Uganda, Article 2
of the Constitution of the Republic of Uganda.

Rigidity
A written constitution is usually rigid, meaning it cannot be amended by the ordinary law-
making process. Special procedures such as super-majorities, referenda, or approval by
districts/states are required. In Uganda Articles 259 - 262 the Constitution of the Republic of
Uganda provide special amendment procedures.

Clear Distribution of Powers

It clearly defines and allocates powers among the organs of government Executive, Legislature,
and Judiciary to avoid concentration of power.

Entrenchment of Fundamental Rights

Fundamental human rights and freedoms are expressly guaranteed and protected within the
constitution. Uganda, the Constitution of the Republic of Uganda Chapter Four (Bill of Rights).

Justiciability and Judicial Review

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Courts have the power to interpret and enforce the constitution and to declare acts of Parliament
or actions of the executive unconstitutional. Case: Marbury v Madison (1803) – foundation of
judicial review.

Certainty and Clarity

Because it is written, the rules are more certain, accessible, and predictable compared to
unwritten conventions.

Special Amendment Procedures

Certain provisions are entrenched and require stricter amendment procedures than others,
sometimes involving referenda. Uganda: Article 260 (entrenched provisions).

Stability and Permanence

Written constitutions are designed to provide long-term stability and continuity of governance.

Codification of National Values and Ideals

It reflects the historical experiences, aspirations, and fundamental values of the people, often
stated in the preamble and national objectives.

2) UNWRITTEN CONSTITUTIONS

An unwritten constitution (more accurately called an uncodified constitution) is one whose

fundamental principles are not contained in a single written document but are derived from
various sources such as statutes, judicial decisions, conventions, and customs.

Characteristics of an Unwritten Constitution

Not Contained in a Single Document

The constitution is found in several sources rather than one supreme document. These include
Acts of Parliament, court decisions, customs, and political practices. EXAMPLE: The United
Kingdom Constitution.

Parliamentary Supremacy

Parliament is the supreme law-making body and can make or unmake any law. No law passed by
Parliament can be declared invalid by courts on constitutional grounds.
18
The case R (MILLER) V SECRETARY OF STATE FOR EXITING THE EU (2017),
strongly reaffirmed the doctrine that Parliament is the supreme law-making body in the United
Kingdom and that courts cannot invalidate an Act of Parliament on constitutional grounds.

The Supreme Court held that rights created by the European Communities Act 1972 were part
of domestic law only because Parliament had enacted them. Therefore, those rights could only
be removed by Parliament, not by the executive using prerogative powers.

Limits of Judicial Power

The Court did not strike down or question the validity of the European Communities Act 1972
or any other Act of Parliament.

Instead, it respected Parliament’s legislation as supreme, confirming that courts in the UK do

not invalidate Acts of Parliament for being unconstitutional.

Executive Subordinate to Parliament

The judgment emphasized that the executive cannot change domestic law or take away statutory
rights unless authorized by Parliament. This reinforces that Parliament, not the executive or
courts, is the ultimate law-making authority.

Flexibility

The constitution is flexible and can be amended through the ordinary legislative process without
special procedures or super-majorities.

Absence of Constitutional Supremacy

There is no single supreme constitutional document. Ordinary statutes may have constitutional
importance but are not legally superior to later Acts of Parliament.

Reliance on Constitutional Conventions

A significant part of the constitution consists of conventions—accepted political practices that

are not legally enforceable but are followed as a matter of constitutional morality.
EXAMPLE: The convention that the Prime Minister must be a member of Parliament.

Limited Judicial Review

19
Courts do not have power to strike down Acts of Parliament for being unconstitutional, though
they interpret laws and may review executive actions.

CASE: ENTICK V CARRINGTON (1765).

Evolutionary and Adaptable

The constitution develops gradually over time in response to political, social, and historical
changes.

Emphasis on Political Accountability

Protection of rights and limits on power rely more on political checks than legal enforcement.

No Entrenched Bill of Rights

Fundamental rights are protected mainly through ordinary laws and judicial interpretation rather
than a supreme constitutional document.

An unwritten constitution is flexible, evolutionary, and politically enforced, relying on

parliamentary sovereignty and conventions rather than constitutional supremacy and judicial
review.

3) AUTOCRATIC/DICTATORIAL CONSTITUTION (ONE RULE):

An autocratic or dictatorial constitution is one in which supreme political power is

concentrated in a single ruler or a small ruling group, with little or no effective legal or
institutional checks on that power. Authority flows from the ruler, not from the people.

Characteristics Autocratic/Dictatorial constitution

Concentration of Power in One Ruler

All major powers executive, legislative, and often judicial are vested in one person (e.g. a
dictator, monarch, or military ruler) or a small elite.

Absence of Separation of Powers

20
There is no meaningful division between the organs of government. The ruler may make laws,
enforce them, and adjudicate disputes.

Limited or Non-existent Fundamental Rights

Human rights are either not guaranteed, weakly protected, or can be suspended at the ruler’s
discretion.

No Effective Judicial Independence

Courts, if they exist, are subordinate to the ruler and lack power to review or restrain
governmental actions.

No Democratic Accountability

The ruler is not elected through free and fair elections and is not answerable to the people or
representative institutions.

Rule by Decree

Laws are often made through executive decrees rather than legislative debate.

Weak or Absent Legislature

Parliament may be dissolved, sidelined, or exist only to rubber-stamp the ruler’s decisions.

Constitution as a Tool of Control

If a constitution exists, it mainly legitimizes the ruler’s authority rather than limiting it.

Suppression of Political Opposition

Opposition parties, free media, and civil society are restricted or banned.

Reliance on Force and Security Apparatus

Power is maintained through the military, police, or security agencies, not constitutional
checks.

4) DEMOCRATIC CONSTITUTIONS:

21
A democratic Constitution has the following characteristics:

i. Recognises the political supremacy of the people;

ii. Upholds the liberty of the individual;
iii. Equality before the law.

5) RIGID CONSTITUTIONS:

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.

6) FLEXIBLE CONSTITUTIONS

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

22
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.

7) 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.

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: -

i. How many people participate in the top decision making organs of government.
ii. What type of ruler is created by a particular democratic, absolute monarch etc.
iii. Actual distribution of power between organs of government or different players of
authority.
iv. Distribution/relationship between the legislature and executive may also lead to
different classifications.
v. Constitutions, which emerge from this type of government, include Democracies and
dictatorships.

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 1) DICTATORIAL CONSTITUTION:

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.

2) DEMOCRATIC CONSTITUTIONS:

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:

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.

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.

24
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’.

3) FEDERAL CONSTITUTIONS.

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; 5th 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 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:

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

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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.

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 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 [Link] 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 two 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
26
matters are left to the state courts. A Federal government always provides for a neutral territory
as the national capital.

4) 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:

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?

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.

27
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.

i. Unitarism may lead to a concentration of resources at the centre and the other regions feel
neglected;
ii. There can be gross mismanagement of the system because of lack of checks and balances
at the centre to check on corruption, etc.
iii. 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.

5) MONARCHICAL CONSTITUTIONS:

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 assume 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

28
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.

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.

6) REPUBLICATION CONSTITUTIONS

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
29
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.

PRESIDENTIAL SYSTEM OF GOVERNMENT

A presidential system of government is a type of democratic governance where the head of state
and head of government is the president. This system is characterized by a clear separation of
powers between the executive branch (headed by the president) and the legislative branch. Here
is a general introduction to the key features of a presidential system:

Head of State and Government:

In a presidential system, the president serves as both the head of state and the head of
government.

The president is typically elected through a separate electoral process, independent of the
legislature.

Separation of Powers:

There is a distinct separation of powers between the executive, legislative, and judicial branches
of government.

The president is not a member of the legislature and is not subject to direct legislative control.

Executive Powers:

The president holds significant executive powers, including the authority to veto legislation,
command the armed forces, and appoint key officials.

The president's term is usually fixed and independent of the legislative term.

Fixed Term and Limited Terms:

The president is often elected for a fixed term, which provides stability to the executive branch.

Depending on the country's constitution, there may be limits on the number of terms a president
can serve.

Independent Election of the President:

The president is elected directly by the citizens (popular vote) or through an electoral college, not
by the legislative body.

Checks and Balances:

While there is a separation of powers, there are still checks and balances in place to prevent
abuse of power.

30
The judiciary plays a role in interpreting the constitution and ensuring that actions of the
president are within legal bounds.

Examples of countries with a presidential system include the United States, Brazil, and Mexico.

It's important to note that variations exist within the presidential system, and the specific features
can differ from one country to another based on their constitutional design and political traditions.
If you have a specific country or aspect in mind, feel free to ask for more detailed information.

PARLIAMENTARY SYSTEM OF GOVERNMENT

A parliamentary system of government is a form of democratic governance in which the

executive branch derives its legitimacy and authority from the legislative branch, also known as
the parliament. This system is characterized by the fusion of powers between the executive and
legislative branches, as well as a clear separation of the head of state and head of government.
Here are the key features of a parliamentary system:

Head of State and Head of Government:

The head of state and head of government are separate individuals.

The head of state may be a monarch, ceremonial president, or a figurehead with limited powers,
while the head of government is usually the prime minister.

Formation of the Executive:

The executive branch, including the prime minister and the cabinet, is drawn from the elected
members of the parliament.

The prime minister is typically the leader of the majority party or coalition in the parliament.

Interdependence of Executive and Legislative Branches:

The executive is accountable to the parliament, and its survival depends on maintaining the
confidence of the majority in the legislative body.

A vote of no confidence can lead to the resignation of the prime minister and the dissolution of
the government.

Cabinet Responsibility:

The cabinet members, including the prime minister, are collectively responsible for decisions and
policies.

Individual ministers are accountable to the parliament for their actions, and they may be required
to resign if they lose the support of the majority.

Flexible Government Formation:

Governments can be more flexible in responding to changes in the political landscape, as they
can be formed or dissolved relatively quickly.
31
Early elections may be called if there is a loss of confidence or if the government cannot secure a
majority for its policies.

Parliamentary Elections:

Members of the parliament are elected through general elections based on a party system or other
electoral methods.

The leader of the majority party or coalition usually becomes the prime minister.

Term Length and Stability:

The term length of the executive is not fixed and depends on maintaining the confidence of the
majority in the parliament.

This system allows for more adaptability in response to changing political circumstances.

Examples of countries with a parliamentary system include the United Kingdom, Canada, India,
and Australia. It's important to note that there can be variations within parliamentary systems,
and the specific features may differ based on each country's constitutional design and political
traditions.

DEMOCRACY

Democracy is a form of government in which power is vested in the hands of the people, either
directly or through elected representatives. It is a system of governance that emphasizes the
participation, equality, and voice of the citizens in the decision-making processes of the state.

Key features of a democratic system include:

Elections: Citizens have the right to vote for their leaders and representatives at regular intervals.
This allows for a peaceful transfer of power and ensures that leaders are accountable to the
electorate.

Rule of Law: A democratic society is governed by a set of laws that apply equally to all citizens.
The rule of law helps protect individual rights and prevents the abuse of power.

Protection of Individual Rights: Democracies typically emphasize the protection of individual

freedoms and human rights. Citizens have the right to express their opinions, assemble
peacefully, and engage in other political and social activities without fear of persecution.

Political Pluralism: Democracies encourage a diversity of political parties and opinions. This
diversity provides citizens with choices and promotes healthy debate on various issues.

32
Civic Participation: In a democracy, citizens are encouraged to actively participate in the
political process. This includes voting, engaging in public discourse, and potentially running for
office.

Checks and Balances: Democratic systems often incorporate mechanisms to prevent the
concentration of power in any one branch or individual. This includes separation of powers
among the executive, legislative, and judicial branches of government.

Transparency and Accountability: Democratic governments are expected to be transparent in

their actions, and officials are held accountable for their decisions and policies.

It's important to note that there are different models and variations of democracy, ranging from
direct democracy, where citizens directly participate in decision-making, to representative
democracy, where citizens elect representatives to make decisions on their behalf. Democracy
has been implemented in various ways across different countries, and its success depends on
factors such as the protection of minority rights, the effectiveness of institutions, and the quality
of civic engagement.

DICTATORSHIP

A dictatorship is a form of government characterized by centralized and autocratic control,

usually under the rule of a single individual known as a dictator. In a dictatorship, the authority is
typically concentrated in the hands of the leader, who often holds significant power without the
constraints of a constitution or democratic processes. The decisions and policies of a dictatorship
are often made unilaterally by the dictator, without the need for approval from a legislative body
or consideration of public opinion.

Key characteristics of a dictatorship include:

Centralized Power: The dictator holds extensive power and authority, often with minimal or no
checks and balances. Decision-making is highly concentrated in the hands of the leader.

Lack of Political Pluralism: Dictatorships typically suppress political opposition and limit the
presence of alternative political parties. Opposition leaders and parties may face censorship,
persecution, or imprisonment.

Limited Civil Liberties: Dictatorships often restrict individual freedoms, such as freedom of
speech, assembly, and association. Media may be tightly controlled, and citizens may face
limitations on expressing dissenting views.
33
Absence of Free and Fair Elections: In a dictatorship, elections, if they occur, are often
manipulated or controlled to ensure the continued rule of the dictator. Opposition candidates may
be marginalized or prohibited.

State Control of Institutions: The dictator and their loyalists often control key institutions,
including the military, law enforcement, and the judiciary. This control helps to ensure the
stability of the regime and suppress dissent.

Personality Cult: Dictators often cultivate a personality cult, promoting their image as a
powerful and charismatic leader. This can involve propaganda, public displays of loyalty, and
efforts to create an aura of invincibility.

Limited Rule of Law: Dictatorships may operate with limited adherence to the rule of law.
Legal processes may be used selectively to target political opponents, and the judiciary may lack
independence.

It's important to note that dictatorships can vary widely in their characteristics and severity.
Some may be more overt and repressive, while others may maintain a facade of legality or
stability. The term "dictatorship" is often used to describe authoritarian regimes that lack
democratic elements and where power is concentrated in the hands of a single leader or a small
group of individuals.

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.

34
Why is citizenship important?

(a) Allegiance
It is important because it decides where a person owes allegiance. She owes it to where she feels
she belongs and not necessarily where she stays. It is different from domicile/ nationality
(b) State Protection
Citizens derive their protection from their States and it is a cardinal duty of any state to protect
people within the country and more so its citizens. The constitution in many aspects treats
citizens and non-citizens differently. There are some countries, which extend protection of its
citizens beyond the territorial limits of the country. This protection beyond the borders is a
concept recognised in international law and foreign policy e.g. Foreign embassies, ships and
aircraft’s.
(c) State responsibility to its citizens
In international law, state responsibility means the international responsibility of a particular
state in its transactions or in matters, which affect other states. The state may be held responsible
in the way it treats its citizens, especially under international human rights law and practice
(ICLPR).
(d) Freedom of movement
Citizens are usually accorded freedom of movement within the country subject to national
security. They can go and live and settle in any part of the country with no bar to any residence
in the country. In addition, a citizen has the right to leave his/ her country and the right to return,
and a right to a passport. This freedom can be restricted with regard to non-citizens.

(e) Citizenship may also be important in criminal proceedings.

There are certain offences, which can only be committed by citizens of a country. E.g. Treason.
Besides, at law, a country is entitled to go after people who are its citizens wheresoever they may
be if they have committed a crime against / in their country. When a person commits a criminal
offence in a country where he is a citizen, but runs away to another, she is brought back
(extradited) to his/her country to be tried. The countries involved however must have extradition
agreements with each other.
(f) Jurisdiction over individuals
Apart from extradition, citizenship may also determine other aspects of jurisdiction. There are
some countries, which make it an offence for any person to harm any of its citizens wherever
they may be e.g. Israel.
35
 (g) Rights of the individual
There are some aspects of human rights which are enjoyed by citizens as opposed to non-citizen
e.g. Right to stay and return to Uganda, political rights, right to register, vote, contest for position,
education, land etc. The question of citizenship might also be important in the area of identifying
duties of individuals. If one fails it can only be proved if he is a citizen e.g. Voting etc. Art 17
and National Principles. XXIX;
(h) For the determination of the phenomenon of duties,
For example, the duty to vote, the duty to obey the law of the land. Also see the duties in para 29
of the National duties of State Policy in the 1995 Constitution;
(i) In situations of a civil break
down in the country the question of citizenship may also arise in regard to who qualifies for a
particular country’s protection. An example is the USA that extends its protection in times of
inter alia civil strife, whenever they may be. This may lead to external or internal refugees.

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

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

discrimination e.t.c) self-determination.

It is nevertheless well to remember, that the right to petition against a violation of the
Constitution or any of the rights contained therein is not confined only to citizens (see: Uganda
Law Society & Justine Semuyaba v. AG. Constitutional Petition. No. 8 of 2000

PROBLEMS ASSOCIATED WITH ASCERTAINING CITIZENSHIP:

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

THE PROCESS OF DETERMINING CITIZENSHIP.

Under international law, the question of citizenship is left to the individual states, for
international law recognises only one principle, ‘No one should be stateless- everyone has a right
36
to be a citizen’. However, the details of determining who and how one can gain citizenship are a
matter that has to be determined by the municipal law of a particular country. Each individual
country therefore decides on the rules of ascertaining citizenship. To ascertain a person's
citizenship one has to look at the various laws contained in a country. These laws usually
include:

(a) The Constitution;

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

CATEGORIES OF CITIZENSHIP
Countries may also provide for different categories of citizenship. The 1995 Ugandan
Constitution provides for different categories of citizenship, i.e. Ways by which citizenship may
be ascertained:
(I) Everyone who was a citizen upon the coming into force of the constitution will continue
to be so;
(II) Citizenship by birth:
Art. 10; There are two types under this category,
(a) Every Ugandan born individual with at least one parent/ grand parent, who is / was a
member of any of the indigenous communities’ resident in and existing in Uganda from February
1, 1926. Those indigenous communities are contained in schedule 3.
(b) Those people whether/ not born in Uganda, whose parents or at least one of such parents is /
was a Ugandan by birth
(III) Citizenship by registration,
Art. 12; At the time of one’s birth, neither his / her parents were a diplomat / a refugee but who
has lived continuously in Uganda since independence shall on application be entitled to
citizenship by registration. The exclusion of immigrants, refugees and diplomats is perhaps
because they can always go back home.

Other categories under the above include:

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(a) Anybody married to a Ugandan citizen for at least three years in a legal and subsisting
marriage;
(b) A Legal and voluntary migrant who has lived in Uganda for at least 10 years / such other
period as Parliament may prescribe;
(c) Every person who when the Constitution came into force has lived in Uganda for at least 20
years, i.e. From August, 10, 1975;

(IV) Citizenship by [Link] 13:

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

(V) Citizenship by presumption:

The 1995 constitution introduces one aspect where a person can be presumed to be a citizen
unless the contrary is proved.
(a) Art 11-A child of not more than 5 years of age whose parents are not known shall be
presumed to be a Citizen;
(b)A child of less than 18 years neither of whose parents is a citizen, who is adopted, by a citizen
may be registered as a citizen of Uganda.

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

(a)Voluntary service in the armed force of another country which is hostile to the home country
or at war with the home country;

(b) Citizenship acquired fraudulently;

(c) Espionage (Sabotage) against the home state.

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These apply to those who acquire citizenship by registration. The Constitution also establishes
the National Citizenship and Immigration Board whose functions are prescribed by Parliament21
under the Uganda Citizenship and Immigration Act.

UNRESOLVED ISSUES IN THE CITIZENSHIP DEBATE:

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

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

(b) Indigenous Community (schedule 3)

In the context of Uganda, the Constitution of the Republic of Uganda lists 65 “indigenous
communities” in its Third Schedule for the purposes of determining who qualifies for citizenship
by birth as of 1 February 1926.

However, many ethnic minority and indigenous identifying groups in Uganda are not currently
included in that constitutional list meaning they lack official recognition under the Constitution
even though they consider themselves indigenous peoples or ethnic communities with distinct
identities.

Examples of Indigenous or Minority Communities Not Recognized in the Constitution

Benet (Kween District), Often described as hunter-gatherers; sought constitutional recognition,

Bakingwe (Kasese District), A minority community seeking recognition, Bagabo (Kasese
District), Part of groups petitioning for inclusion, Maragoli (in Kiryandongo, Masindi, and
Hoima districts), Community pushing for recognition, Haya (Rakai District), Another group
proposed for constitutional inclusion, Basese, Identified among groups lobbying to be added,
Bagaya, Minority group many seek to be recognized, Masopike / Mosopisyek, Identified in
advocacy reports as unrecognized, Meru, Another group proposed for recognition, Paluo
(sometimes referred to as Chope/Pa’Luo), Often cited in proposed amendments but not in
current Third Schedule, Sabaot (Saboat), Identified in reports as lacking recognition and Baziba
/ Bahaya, Minority peoples described in advocacy documentation.

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These communities are not currently listed among the constitutionally recognised indigenous
communities a situation that has led to legal and political campaigns for constitutional
amendment so that they can benefit from rights and services tied to that status.

c) Citizenship for Refugees at the Commencement of the 1995 Constitution (With

Particular Reference to Rwandese Refugees Who Have Returned Home)

The question of citizenship for refugees at the commencement of the 1995 Constitution of Uganda
remains one of the most unsettled and politically sensitive debates in Uganda’s constitutional and
citizenship discourse. This is especially true in relation to Rwandese refugees who had lived in
Uganda for long periods and later returned to Rwanda.

Ambiguity Surrounding Rwandese refugees Long-Term Residence Before 1995

Many Rwandese refugees had resided in Uganda for decades before 1995, some arriving as early
as the 1950s and 1960s. Despite this prolonged residence:

The Constitution did not clearly define whether long-term refugee residence could translate
into citizenship.

Article 10 relied on citizenship status under pre-1995 laws, which largely excluded refugees,
creating a legal gap for persons who were socially integrated but legally non-citizens.

This has left unresolved whether such refugees were unfairly excluded from the constitutional
transition to citizenship.

Status of Refugees Who Later Repatriated

A major unresolved issue concerns refugees who returned to Rwanda after 1995, particularly
following the 1994 genocide and subsequent political stabilization:

Some individuals claimed historical ties to Uganda and argued that they ought to have been
recognized as Ugandan citizens before repatriation.

Their voluntary repatriation has raised questions as to whether such return extinguished any
potential claim to Ugandan citizenship, even where long residence or integration existed.

The law remains unclear on whether repatriation nullifies an unasserted or unresolved

citizenship claim.

Indigenous Communities and Historical Presence

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Article 10 read together with the Third Schedule lists indigenous communities present in Uganda
before 1 February 1926.

Some Rwandese refugees claimed ancestral or ethnic links to communities within Uganda.

However, the Third Schedule did not expressly include Rwandese groups, leading to contestation
over exclusion and historical accuracy.

This raises unresolved questions on whether the constitutional list is exhaustive or merely
illustrative, and whether historically mobile communities were unjustly excluded.

The citizenship status of refugees particularly Rwandese refugees who later repatriated remains
legally and politically unresolved. The Constitution neither conclusively included nor explicitly
excluded them, resulting in enduring ambiguities. Until clarified through constitutional
amendment, legislation, or judicial interpretation, the debate over their rightful citizenship
status at the commencement of the 1995 Constitution will remain open.

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. AG Constitutional Petition no. 8/ 2000 , where the Constitutional Court held
that Citizens have a duty to defend the Constitution from any violent or the unlawful means of
change other than by the procedure provided for in the Constitution;

2. Citizens have a further duty to do all in their power to restore the Constitution after it has been
suspended, overthrown, abrogated or amended contrary to its provisions under Article 3(4) of the
Constitution of the Republic of Uganda 1995

3. To respect the national anthem, flag, coat of arms and currency Article 17 of the Constitution
4. To respect the rights and freedoms of others;
5. To protect children and vulnerable person against any form of abuse, harassment or ill-
treatment;
6. To protect and preserve public property;
7. To defend Uganda and to render national service when necessary;

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

GENERAL PRINCIPLES OF CONSTITUTIONAL LAW:

There are some general principles of constitutional law which are initially accepted as being part
and parcel of a good constitutional system and these principles are incorporated in constitutions
through various ways. They may be expressly incorporated or may be inferred in the effect of
some clauses in the constitutions:-

1. Rule of law;

2. Separation of power;

3. Fundamental human rights and freedom;

4. In some cases sovereignty of parliament.

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THE RULE OF LAW

The origins of the notions of the rule of law came from Prof. Albert Venn Dicey in his book
‘The law of the constitution, 1885’. He argues that the doctrine rests upon two fundamental
principles and these are:

(i) Government must be one of rules/ law and not one of a man.
(ii) The rule/Supremacy of law.

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

The term ‘rule of law’ springs from the concept whereby "if I am subject to another person, then
I am at the mercy of his whims and passions, his anger and his prejudices. But if we are both
subject to the law, then the personal factor is taken out of politics. By subjecting everyone to the
law, we make ourselves, in a sense, equals.” All persons must subject themselves to the law.
Officials, police, the masses, (even when they think they're acting in the public good) must all be
subjected to legal constraint.

The powers of government must be exercised in accordance with the law and must be
conditioned by law i.e. Government subject to law. This concept can be traceable from the
theories of natural lawyers. Montesquieu and Roseau are some of the natural lawyers who
believed that man has rights and it is the duty of government to protect those rights. In England
this concept of the rule of law was popularised and expounded upon by Prof.

Dicey. According to Dicey the rule of law essentially has 3 meanings which are all applicable:-

i. The rule of law means the absolute supremacy or predominance of regular law
as opposed to the influence or arbitrary exercise of power (discretion);
ii. Rule of law also means equality of all citizens before the law. There should
be no discrimination against some\ people or privileges for others;

iii. Rule of law means that the law of the constitution is the consequence of the
rights of the individual, but not the rights of the individual, which are inherent.
The rule of law involves moral compulsion and is often used as a guiding principle by critics of
an excessive official action.

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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.
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;

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;

Applying the rule of law particularly to the unwritten constitution, the judicial arm of
government is the organ with the power to ensure that the rule of law is observed and enforced.

THE QUESTION OF THE APPLICATION OF THE RULE OF LAW:

The most articulate statement on the rule of law in modern times came from the International
Conference of Jurists (ICJ) which is an International NGO devoted to human rights and based in
Geneva.
In 1959, the ICJ issued a statement considered to be basic to the rule of law. It contained the
following principles, inter alia:
1. There should be a strong and effective government and by this:
(a) One that can maintain law and order throughout the country and command the obedience of
all decisions;
(b) The citizens in the country should be able to pursue economic, 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.

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3. There should be equality of all people before the law and the law must be equally applied to
all irrespective of race, colour, sex, status, etc.
4. The Independence of the Judiciary should be respected and there are a number of components
of this:
(a) The nature of appointment must guarantee the greatest possible election of judges;
(b) Judges should be capable and honest;
(c) Judges should have the merit and should be qualified to read and interpret the law as a basic
qualification. Usually, this system of election should ensure that the people qualify. In Uganda, it
is the Judicial Service Commission that appoints Judges / Justices. Under the doctrine of the
independence of the judiciary, there must be security of tenure for the judicial officers. Once
appointed, Judges should not be removed. There is a process that must be [Link]
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, economic and cultural
rights. In most constitutions, these rights are contained in a separate cap or bill. In the
Constitution of the Republic of Uganda, 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.

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10. The rule of law also demands respect of social affairs and their recognition and that people’s
rights should be protected and promoted.
THE DOCTRINE OF SEPARATION OF POWERS:

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

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

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

The doctrine is fairly dated and its first normative expression is based on the assumption that
concentration of powers in one person or one organ of government usually leads to tyrannical
rule. This theory was championed by a French philosopher Montesquieu; in his book THE
SPIRIT OF THE LAWS, 1878 that when the legislature and execution powers were united in the
same person. To him, any infusion leads to tyrannical and arbitrary government. His argument
was that in order to protect the individual from tyranny of government there is a need for the 3
separate organs of government to be separate from each other in terms of powers and in the way
the powers are exercised.

According to him government is made of the executive, the judiciary and the legislature. These
three should be separate. His basis was the French government at that time whereby all the
powers were concentrated in the monarchy - and this was leading to tyranny. The French
Government enjoyed absolute power.

Montesquieu contrasted the French system of government from the British one. He believed that
the British constitutional arrangement had the concept of separating of powers in practice.
Montesquieu said separation of powers essentially means 3 things.

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

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

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

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

The US system separates personalities and members of cabinet (executive) are not members of
congress and they cannot sit as judges in courts. The Congress only exercises the legislative
functions but the President has to assent to a bill before it is passed into law. The President is
elected separately from congress at a separate election.
The Supreme Court of the US is only concerned with protecting the constitution so it can
overturn a decision of the executive or can overrule 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 balance 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”

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

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

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

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

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

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HOW THE DOCTRINE OF SEPARATION OF POWERS IS MANIFESTED IN THE
CONSTITUTION OF THE REPUBLIC OF UGANDA

The Constitution of the Republic of Uganda 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 Constitution of the Republic
of Uganda in comparison to the 1967 Constitution which had clearly defined demarcations
between the three organs.

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

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

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

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

49
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 affected by Parliament.
Art 101, president must address parliament on the state of the nation at the beginning of each
session.

CRITICISM
1. The Principal is incoherent/hopelessly ambivalent.
2. It imposes legal limits on the operation of the legislation there is no material difference
between the 3 functions, so why should one, not the other, perform one task. For example,
judicial and administrative decisions.
3. The principle is irrelevant Vs. Bureaucracy/tyranny (democratic control);
4. The principle is impossible to define with precision.
5. Executives enjoy massive delegated authority.
6. Judicial review is inhibited (makes judges reluctant to intervene) eg Kanyeihamba in
TINYEFUZA’S case
THE EXECUTIVE AND CABINET SYSTEM:

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

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

50
 (1) He has the duty to constitute the Public Service and other services and organs of the State
and other bodies by appointing competent people on the chair subject to their
qualifications
The President exercises all executive powers although s/he does so with the support or
assistance from other organs or individuals. The Constitution therefore, establishes other
constitutional offices, which are for purposes of assisting the president in executing his functions.
These offices are usually regarded as part and parcel of the executive (What is the status of State
House appointees?).

Executive authority normally means power to run the government. So the executive head is
always head of government who will appoint members of government and can remove them
whenever he wants (Cabinet and other officers basically serve at the pleasure of the President: no
security of tenure) See case of Dunn v. The Queen, held that ‘servants of the Crown hold office
only during the pleasure of the Crown, except in cases where it is otherwise provided by statute
(part of the original prerogative of the Crown (see also Rodwell v. Thomas and Terrell v.
Secretary of State for the Colonies).
This power was confirmed by the case of Opoloto v. Uganda, where the court held that it was
one of the prerogative powers vested in the Crown and inherited by the President of Uganda, and
that to take away that power would require clear words in the statute (cf. Case of C.B. Reilly v.
The King,which was concerned with the abolition of an office by statute). The court would not
interfere in the dismissal of the appellant who had been discharged as a member of the Armed
Forces and Chief of Defence Staff because this could ‘embarrass and prejudice the security of
the [Link], 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.”

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Needless to say, where an Act of parliament contradicts the express provisions of the
Constitution with respect to the exercise of executive power, the Act will be invalid to the extent
of the inconsistency. This was the holding in the case of Fox Odoi-Oywelowo v. AG (Const. Pet.
No. 8 of 2003), in which the petitioners challenged the constitutionality of certain provisions of
the Leadership Code Act which mandated that upon the failure of a Public Officer to remit a
declaration of their assets to the IGG, that person shall be dismissed from office. The court held
that this provision contravened several articles of the 1995 Constitution, which provided for a
different mode of enforcement of executive power. In other words, a mere statute could not
prescribe a different method of removal of certain public officers as stipulated in the Constitution.
Specific provisions cited included: 60.8 (on the Electoral Commission);
Several other Constitutional offices (e.g. Human Rights Commissioners, etc.) Must be removed
under the specific provisions, although the Constitutional Amendment Bills wants to change
these, essentially reducing the current protections
FUNCTIONS OF EXECUTIVES
1. Initiate policies for the management and development of the country. Kanyeihamba, JSC in
Tinyefuza v. AG: “The Chief Executive of Uganda who is equally a protector and implementer
of the Constitution, albeit at different levels from those used by the Courts of Law, should be
allowed to breathe and think aloud about his or her responsibilities to the State and Ugandans
without having to be dragged to court every time. The President should be allowed to investigate
matters within the jurisdiction of the Presidency and should be allowed discretion in combating
insurgencies and rebellions as well to wage a war authorized by Parliament without unnecessary
interference from the Courts of Judicature… It would be bad law, in my opinion, if every time
the President of Uganda thought and proposed that a certain course of action should be
investigated; the President is immediately challenged in courts of law without further ado.”

2. Ensure implementation of policies once initiated.

3. Maintain law and order (Art 99 - President shall execute and maintain this constitution and all
laws).

4. Makes subsidiary legislation: Parliament cannot possibly make every law or byelaw that
needs to be made. He makes subsidiary legislation, subordinate to the principle legislation.
Under Article 99

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(5), a statutory instrument or other instrument issued by the President or any person authorised
by the President may be authenticated by the signature of a Minister and the validity of any
instrument so authenticated shall not be called in question on the ground that it is not made,
issued or executed by the President Art. 99(5) AG SI on prohibited societies. Constitutes and
make appointments to any positions in the public in the service, subject to parliamentary
approval. See Banana v. A.G (1999) 1LRC 120

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

a. The V.P, Art. 108; H/she deputises the president and performs any other functions so assigned
to her by the President;
b. A cabinet of ministers, Art. 111 & 112 which shall consist of;
i. The P; Armed forces, ONAPITO
ii. The VP and such other ministers contravening Art. 113. Ministers not to exceed 22.
The AG is provided for under art. 119. For the first time since the 1962 constitution, the AG’s
office has been separated from that of the minister of justice. The DPP is an independent
functionary supposed to oversee criminal proceedings in the country under Article 120. There are
other offices that can assist the Executive in the maintenance of law and order inter alia. The
Police force, the Prison forces.
Election of President (qualification) Art 102 and 103 as amended by S. 27 of Act 11/2005.
1. Citizen by birth;
2. Should be between 18 years and above;
3. A person qualified to be a Member of Parliament;
4. He must also comply with the requirements of the electoral law e.g. Deposit 20 million
Shillings. Electoral procedure is found in the Presidential Election Act.

The Constitution provides that the president shall be elected by universal adult suffrage and
through the secret ballot. In 1967 the Constitution provided that the elections were along party
lines and the leader of the majority party would become president (presidential election was thus
indirect).

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The Constitution of the Republic of Uganda under article 103 stipulates that election should be
direct and must be held within the first 30 days of the last 99 days before the expiration of the
term of the President except in the case of:
(a) The first election under this Constitution;
(b) An election held under Article 104 (6) of the Constitution where an election us annulled, in
which case, another election has to be held within 21 days from the date of the annulment;
(c) An election held under Article 109 (2) where the President has died, resigned or been
removed, in which case, the elections must be held within 6 months;
(d) An election necessitated by the fact that a normal presidential election could not be held as a
result of the existence of a state of war or a state of emergency in which case, the election shall
be held within such period as Parliament may by law, prescribe;
(e) A candidate shall not be declared elected as President unless the number of votes in favour of
that candidate at the presidential election is more than 50% of the valid votes cast at the election.
Where at a Presidential election, no candidate obtains the percentage of the votes specified above,
a second election shall be held within 30 days after the declaration of the results in which
election, and the two candidates who obtained the highest number of votes shall be the only
candidates. The candidate who obtains the highest number in an election shall be declared
elected President.

The Electoral Commission shall ascertain, publish and declare in writing under its seal, the
results of the presidential election within 48 hours from the close of polling. A person elected
President shall assume office within 24 hours after the expiration of the term of the predecessor
and in any other case, within 24 hours after being declared as the President. Article 104 deals
with the challenging Presidential Elections. Case of Kizza Besiege v. Y.K. Museveni (2001)
established that the President could be sued under Art.104 (as an exception to presidential
immunity).
Security of Tenure of President Once a person is elected he is expected to serve for at least 5
years unless he resigns or dies in office.

The president may, however, be removed from office on the following grounds: - Art 107
1. Wilful abuse of office, or violation of the oath of allegiance;
2. Misconduct or misbehaviour;
3. Physical or mental incapacity such that he cannot perform his functions.

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PRIVILEGES THAT GO WITH OFFICE OF PRESIDENT ARE:
1. No direct private taxation. Art 106;
2. Immune to any judicial proceedings while in office (principle dealt with in the case of:
Baumann & Co. V. Nadiope [1968] EA 306. Issue was:
Whether the effect of the protection given to the Kyabazinga was to cover exemption from
jurisdiction (was it procedural, or did it destroy the cause of action against him? Court held that
there was never any immunity from legal liability, but during the period of protection, there was
exemption from civil jurisdiction; the cause of action had not been destroyed, and thus
proceedings were allowed.

In R v. Bartle & the Commissioner of Police for Metro Police &Ors Ex Parte Pinochet (1999)
established the principle of universal jurisdiction and presidential immunity. The case arose from
an attempt by the government of Spain to extradite Senate Augusto. The Spanish Government
wanted him extradited to stand trial for acts of torture, murder, conspiracy and illegal detention.
There were two issues to be determined and these were:
1. Whether there were any extraditable crimes;
2. Whether [Link] was entitled to immunity?

The issues on immunity as framed by court were:

Whether a former Head of State is entitled to immunity for all acts done while in office.
The answer to this issue as found by court was that the Head of State is entitled to complete
immunity while still in office and in this respect, h/she is rendered immune from all actions of
prosecution whether not / not for matters done in relation to the state. When and if he leaves
office, he only enjoys partial immunity, only immunity in relation to official acts done while still
in office.

Whether the commission of an International crime against humanity such as torture subjects the
Head of State to prosecution after leaving office? Court realised that the Convention against
torture of 1984 requires all states to ban and outlaw torture. So, for the purpose of International
Law, a person / Head of State cannot claim that an act is official when International law has
prohibited and criminalised the act. To rule otherwise would provide a safe haven for tortures.
Therefore, the immunity of the Head of State would be inconsistent with the Torture Convention.

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[Link] 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) has 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 Constitution of the Republic of Uganda. With regard to other matters, it is
quite clear that the President cannot claim a prerogative where it has not been explicitly given.
Overruling the case of Opoloto v. AG in which the Presidential prerogative to dismiss at will was
overruled (Justice Kanyeihamba
The question of Presidential immunity also arose in the case of Baumann v. Nadiope
The Vice President the Kyabazinga of Busoga in this case was supplied with fish and he refused
to pay. Boumann found it difficult to sue him while he was Vice President. After his term of
office the suit was brought against him but it was argued that the limitation time was over. Court
ruled that the president’s immunity as concerned judicial matters extended to vice presidents.

Art 106 - Salary allowances charged on the consolidated fund.

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

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

LIMITATIONS IN REGARD TO THE PRESIDENT.

i. Cannot enjoy a free social life;

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

STATE OF EMERGENCY

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

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

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

- Where internal insurgence or national disaster threatens the economy of the country.

- Where public safety requires those special measures to be taken to secure the defence or the
security of the country or where special services are required.

The Constitution requires that any proclamation of a state of emergency must be approved by
parliament within 14 days after it has been proclaimed. If not approved, it will not take off. State
of emergency usually involves suspension of some basic rights, which may have been laid down
in the constitution. The Constitution gives parliament powers to enact such laws as may be
necessary for effective implementation of a state of emergency.

THE COMPOSITION OF THE EXECUTIVE:

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Furthermore, the armed forces are a part of the Executive and supervised by Parliament. The
members and officers of the armed forces are in a category of people who are different from
ordinary citizens. The armed forces are instruments of state, equipped, disciplined and trained to
exercise physical force in the interests of the state.

They are subject to both civilian and military law. The discretion and judgment on military
affairs and personnel are vested in the President as Chief Executive who also happens to be the
repository of constitutional and legal powers relating to the same subject matter. Courts should
refrain from reviewing decisions relating to military affairs unless they have to. The exercise of
judicial power must be within proper bounds and should fall short to the point beyond which it
might be considered as an intrusion in the powers of the co-ordinate branches, namely, the
Legislature and the Executive. The Constitution has empowered Parliament, and not the
Judiciary, to supervise the Executive when the latter is exercising its functions in military
operations.

VICE PRESIDENT

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

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

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

THE PRIME MINISTER

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

CABINET

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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:

Individual responsibility:

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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, anywhere and the public through its elected
representatives the Members of Parliament can display its displeasure through censorship, Art.
118.
In Uganda, there have been several attempts and successful censorships: 5 successful censorships.
1. Matthew Rukikaire;
2. KirundaKivejinja;
3. James M. Katugugu;
4. Sam Kutesa;
5. Specioza.
There are a number of things that can he said about the censorship:
1. The rules of procedure were not very clear and this was the main reason as to Jim’s appeal to
the High Court in MUHWEZI KATUGUGU v. A.G. Unfortunately, the C.A dismissed his
petition on the technicality that he had not got the Speaker’s permission from Parliament. But
wasn’t this a wrong decision for Art. 126 (2) (e) talks of substantive justice without undue regard
to technicalities. They would have dealt with the substance.
2. The phrase appropriate action contained in Clause 2, Art. 118 states that: After a censorship
motion has been passed, the President shall unless the Minister resigns take appropriate action in
the matter. But isn’t the word ‘appropriate action’ too wide that various meanings can be
attached to it? He can choose to transfer the Minister to do something else. Such a Minster
should just be forced to resign.

The calling of individual responsibility is collective responsibility.

A Minister must accept responsibility for authorised conduct of officials in his or her Ministry.
The minister must account to parliament and protect such officials. If there is serious
misconduct/misjudgement, Minister should resign (Valley Dams, UCB).
Members of cabinet do not enjoy a particular period of tenure. They are appointed by the
president and usually enjoy their office at the pleasure of the president with the approval of
parliament

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Art 116 - office of minister may be vacant if any of the following happen
i. Where president revokes the appointment;
ii. Where the minister resigns;
iii. Where he becomes disqualified to be Member of Parliament iv. Where pursuant
to a vote of censure the minister is removed by Parliament Art 118;
iv. Upon death.
THE LEGISLATURE

SUPREMACY / SOVEREIGNTY OF PARLIAMENT

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

Originally democracy meant everyone's direct participation in the affairs of state. However, with
the growth of population, it is impracticable to practice democracy in that manner. Therefore
indirect democracy exercised through duly elected representatives is accepted as fulfilling the
minimum requirement of a democratic society. The organ of government, which puts in effect
this concept of democracy through representation, is actually the legislature, which we hence call
parliament. Parliament is established under Art 77 of the constitution. There shall always be a
parliament of Uganda.

Under English law, the doctrine of parliamentary sovereignty holds that parliament is the
supreme organ of government. In this way, it can pass laws on any matter and such law cannot
be questioned in a court of law. This position derives from the notion that Parliament represents
the will of the people. It also means that parliament has unlimited legislative competence i.e. The
power to make any law without restriction (See Edinburgh Dalke andBradlaugh vs. Gosset.
(1884) 7 QB 271 It is a doctrine, which was developed under English constitutional history, and
arose as a desire to limit the powers of the executive which at that time were heavily dominated
by the monarchy. As a result of various wars, it was agreed that a democracy required a
representative government where by all peoples are represented at the highest possible level. As
a consequence of the doctrine of separation of powers, this representative government could only
be ascertained from the role of parliament. Parliament was thus viewed as a symbol of
representative democracy.

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However, in Uganda the situation since the enactment of the Constitution of the Republic of
Uganda has shown a difference. That difference has been articulated in several cases. In David
Tinyefuza v. AG, Kanyeihamba, JSC, that stated that: “… the rule appears to be that courts have
no jurisdiction over matters, which are within the constitutional and legal powers of the
executive. Even in cases where courts feel obliged to intervene and review legislative measures
of the legislature or administrative decisions of the executive when challenged on the grounds
that the rights or freedoms of individuals are clearly infringed or threatened, they do so sparingly
and with the greatest of reluctance (citing Marbury v. Madison) ”.

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

“I noticed that counsel for the Attorney General relied very heavily on authorities derived from
English courts while applying and interpreting the unwritten British Constitution which operates
under a sovereign Parliament. In Uganda, it is not Parliament but the Constitution, which is
supreme. Relevant authorities should have included those derived from countries with similar
written constitutions….”

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

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

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

Thus, in the case of Paul KawangaSemogerere v. AG Constitutional Petition 3/00, a petition

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

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published by the Electoral Commission in July 28, 2000 Under General Notice no. 280 and the
Movement Political System adopted.

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

The Constitutional Court held inter alia:

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

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

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

iv. The attempt by Parliament in S.2 of the impugned Act to backdate the effective date of the
Act to July 2, 1999 was intended to stretch the time backward to comply with Art. 271 (2).
Default had already been committed when the Act was not put in place two years before the
expiry of the life of the first Parliament selected under the Constitution and backdating the
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effective date of the Act was of no help since the Constitution wanted the law to be in place two
years before the expiry of the life of the first Parliament; Therefore, the short time of 16 days
allowed under the impugned Act as against one year intended under the Constitution for the
people of Uganda to canvass for public support to choose a political system was inconsistent
with Art. 271 (2) of the Constitution.

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

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

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

Laws and rules made by Parliament cannot take away the Constitutional Court’s jurisdiction to
hear allegations of breach of the Constitution by Parliament. Where breach of the Constitution is
alleged, the Court should decide whether or not there was a breach :

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

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

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

Sovereignty of parliament is usually ascertained from the following:

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

The sovereignty of parliament can also be ascertained from the relationship between the
legislative and executive. The supremacy of parliament exists in situations where parliament acts
or has power to act as a watchdog over the executive.

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

1. Geographical: it extends throughout Uganda from border to boarder in law making. Parliament
can make laws covering any subject matter.

2. Legislative functions also cover all individuals without restriction Limitations:

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Limitations:

i) Public Policy

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

ii) Consultation

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

iii) Public Opinion

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

The prohibition of retrospective legislation

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

The social and economic position of a country may also limit the powers of parliament because

there are other people who can dictate upon it. E.g. UN - World Bank.

LAWS MUST CONFORM TO THE CONSTITUTION:

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

PRIVILEGES & POWERS OF PARLIAMENT.

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

parliament. Privileges exist so as to enable members of parliament to carry out their duties
without fear or favour. Art 97 of constitution provides that the speaker, deputy and members of
parliament or any person participating or assisting in or acting in connection with the
proceedings of parliament shall be entitled to privileges and immunities as prescribed by

66
parliament. There are however, established privileges and immunities, which have been
recognised and applied for ages as far as parliament is concerned

In English Common Law, there are four key elements to this power and privilege:

1. Mps must be free from arrest / molestation;

2. Liberty of speech in all debates in Parliamentary Chambers must be emphasised. An MP is

free to speak h/her mind in all debates and cannot be made a subject of any proceedings;

3. Mps enjoy the privilege of access to the royal person whenever the occasion requires in order
to ensure harmony between the crown and the legislature.

4. All proceeds in the House should be given the most favourable interpretation by the
Monarchy.

In Uganda, the privileges of the legislature are enshrined in art. 97 of the Constitution. The
prescription of those privileges are found in the National Assembly (Powers & Privileges) Act.
Also no criminal or civil proceedings may be instituted for words spoken before/ written in a
report to the Assembly/ to a committee of the House. This covers everything in the House though
it is questionable whether it covers everything outside the House.

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

Onama Felix Kenyi v. Augus Newspaper(1969) EA P.62, the appellant sued the respondent
Newspaper in libel on the basis of words spoken in the National Assembly. The respondent
newspaper won in the first instance. However, on appeal, the case was overturned because the
appellant demonstrated that what was reported in the newspaper was different from what was
said in the House.

Importance of the case:

The reformation of the privileged character of legislative proceedings.

There are three key ideas that form the notion of free speech in parliament.

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 i. There is only the National Assembly that can and should judge the conduct of its
members. In other words, if members are indiscplined, it is the House to set the
sanction and not anyone else.
ii. Not only the House members but also private members who communicate with
the National Assembly are protected;
iii. The free speech privilege is absolute and not limited to any matter whatsoever
with only one exception- the sub judice matters

Thus, in the case of AG v. Tinyefuza, the AG Supreme Court Appeal 1/97, then Bat Katurebe
criticised the Constitutional Court for ignoring S. 14(2) of the National Act which provision
barred public officers from producing certain evidence without authority. One of the issues
before court in this case was whether the appellant was protected under art. 97.

Per Wambuzi CJ at p. 20,

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

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

2. Publications of own proceedings in documents known as Hansards. Parliament has the right
to control the use of Hansards. This was the case in MuhweziKatugugu V. A.G47 which was
dismissed because the petitioner had failed to get permission from the Speaker.

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Also see OPOLOTO’s case.
Freedom of all members of parliament when going to attend or returning from a sitting of a
Committee of the Assembly;
Parliament can devise punishments for any breach of privilege or contempt of Parliament
including admonition, reprimand, suspension or expulsion or an order that the offender be tried.
In this respect, the Speaker has the power to discontinue the speech of any member who is being
irrelevant or who is guilty of tedious repetition;

Parliament has the power to regulate its own proceedings and also to be paid adequate
remuneration
Regulating discipline is another privilege in parliament. Parliament disciplines its own members.
The disciplinary procedures are contained in parliament procedures, which are made by the
parliament.
HOUSE OF PARLIAMENT

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

2. Financial measures must be introduced in the House of parliament by a Minister (C/Ex);

3. The speaker to be heard must give a chance to minor parties to be heard;

4. Members of parliament should have access to question ministers through the speaker;

5. All political parties should be represented (normally in proportion to representative in House

of Parliament) in parliamentary commissions. Opposition should lead PAC.

Rules of procedure

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

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

Financial Powers

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

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

Composition of Parliament, (Art 78)

Parliament has 4 categories of membership:-

- Directly elected members who represent constituencies through universal adult suffrage (look
at Art 59).

- One-woman representative for every district.

- Representatives of special interest groups e.g. The army, youth, disabled, workers and other
persons whom parliament may decide.

* Should we have such special representatives and which special groups should be represented?

The ex-officio members who if not elected to represent constituencies become members of
parliament by virtue of their position-vice president and ministers.

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

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

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

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How they become members of parliament.

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

1. Must be a citizen;

2. Must be a registered voter;

3. Must have 'A' level standard of education;

4. Must be of sound mind;

5. Must not be a cultural leader Art 246;

6. Must not be bankrupt;

7. Must not be under sentence of over 9 months imprisonment or death;

8. Must not hold any other public office

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

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

FUNCTIONS OF PARLIAMENT:

Art 77 (2) provides that functions of parliament shall be prescribed by this constitution.

Art 79 (2) provides for the functions of parliament and broadly there are basically 2 functions:-

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

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Procedure in making laws:
The constitution doesn't concern itself with the detailed procedures of making laws in parliament.
The constitution confines itself to the basic aspects which include:-
1. Quorum - 1/3rd of all members;
2. Gives insight on the voting procedure;
3. Provides for establishment of various committees but generally the constitution provides that
parliament shall regulate its own procedure. Art 94;
4. Art 93 financial matters, amendment of constitution, removal of member of executive;
HOW ARE LAWS MADE?

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

The required law is then drafted and the agreed policy is translated into a legal provision. The 1st
parliamentary counsel/government draftsman who receives instructions from the relevant
government department does this. At this stage, the parliamentary draftsman will have to decide
whether it’s an amendment to an existing law or a substantive change. He will also be expected
to ensure that all changes/likely effects on the existing laws are actually taken into account such
that if it requires amendment of the existing law it should be amended accordingly.

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

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

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

1 ST READING: A simple introduction of the proposed law to the members. It can take as short
as one minute. There is no discussion on the bill at this stage but the minister will have circulated
the bill to the members of the house to know about it before it is presented to parliament and the
bill will also have to be gazetted in the Uganda Gazette. Circulation and publication is to enable
both members of parliament and the public to know about provisions of the bill so that they can
contribute to the debate effectively.
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In the case of MiriaMatembe& 2 Ors. V. AG Constitutional Appeal No.1 of 2005 court held
that “It was premature to gauge a breach of the Constitution before a Committee has submitted
its report to Parliament. Since Parliament has a duty to act within the Constitution when carrying
out its legislative functions, it is too early to tell whether it will breach the Constitution at this
stage.”

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

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

At the end of the 2nd reading it will have been agreed upon almost in its entirety. At this stage,
formal amendments are proposed and discussed. At the end of the 2nd reading the law will have
been shaped and will be ready for the 3rd reading. All amendments that are agreed upon will be
noted and incorporated into the main bill by the draftsman and clerk.

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

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

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

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

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

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

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

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

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

Art 164 (3): Monitor expense.

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

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

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

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

CONSTITUTIONALISM AND DEMOCRATIC PROVISIONS: CONSTITUTIONAL

CHECKS OF EXECUTIVE POWERS.

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

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

Approvals of public appointment

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

There are also provisions to ensure that the president appoints people after consulting parliament:

- Judges, public servants, cabinet ministers, heads of diplomacy and high ranking officers are
actually appointed with approval of parliament. Others include: -

- Cabinet members Art 113 (1) and 114 (2).

- Attorney General Art 119.

- DPP through PSC Art 120 with the approval of parliament.

- Ambassadors Art 122 heads of diplomatic missions.

- Judges of High Court up wards Art 142.

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- Auditor General whose office shall be a public office to ensure that money given to
departments is not misused Art 163.

- Education services commission Art 167.

- Inspector General of Police Art 213.

Art 203 (3c)?

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

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

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

Powers relating to public finance and the national economy.

Parliament is given power to regulate such matters. Finance matters can only be approved by
parliament. There must be a bill following imposition of taxes for paying of public debts. Under
art 152 - no tax should be imposed without the authority of parliament. Thus Parliament debates
and approves whom and what is taxed and the rate of taxing and promoting constitutionally
established constitution. The constitution provides that parliament will be composed of people's
representatives and it’s the duty of parliament to promote and respect the constitutionally
established constitutional provisions.

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

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

THE JUDICIARY

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

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

In relation to Constitutional law, the question of judicial power is important in so far as it

concerns the settlement of disputes between the individual and the state- this is the essence of
constitutional law. The judiciary intervenes in order to ensure that democratic freedoms and
rights are protected and that the state does not suppress them.

There are three basic foundations in which judicial power in the arena of constitutionalism is
contrasted and these are:

1. In relation to the formulation of public policy- what should be public policy?

(a) Should the Police accept bribes?

(b) Should the death penalty be upheld?

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

3. In determining the necessary boundaries of good governance.

(a) What is good governance?

(b) What are the basic principles by which the rulers should relate to the ruled?

(c) How do you ensure transparency in government operations of duties and obligations?

THE STRUCTURE OF THE JUDICIARY:

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The structure of the judiciary is governed by article 129 and their order of jurisdiction is as
follows:

a. The Supreme Court;

b. The Court of Appeal;

c. The High Court;

d. Such other subordinate courts as Parliament may by law establish including the Qadhis Courts
for marriage, divorce, inheritance of property ad guardianship as may be prescribed by
Parliament. The question arises, is the General Court-Martial subordinate to the High Court or do
the two courts have concurrent jurisdiction? There has been a debate on the same.

Thus, one of the issues that confronted court in the case of Joseph Tumushabe v AG
Constitutional Petition 6/04, was the jurisdiction of the General Court Martial.

The Constitutional Court held that the Uganda Peoples Defences Act that provides for the
General court-martial is an Act of Parliament. Under art. 129 (1) (d) Parliament cannot establish
Courts that are superior to the High Court. It can only establish ‘subordinate Courts’ which under
art. 257 mean a court subordinate to the High Court. Such subordinate Courts include the
General court-martial.

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

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

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

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

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

Justice Kanyeihamba in Tinyefuza v. AG at p.10:

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

But later in MiriaMatembe&Ors. V. AG Constitutional Application no.2/05 , responding to the

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

“This rule like any other rule is not absolute. The Constitutional Court was established as the
guardian of the rights and freedoms of the individual against oppressive and unjust laws and acts.

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It must remain vigilant in upholding the provisions of the Constitution. Therefore if an allegation
is made against the Executive or the Legislature about the unconstitutionality of their actions or
omissions, this Court is seized with jurisdiction to intervene.” (at p. 10).

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

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

For the first time, Islamic faith is observed under such courts. Exercise of judicial powers falls
under articles 1,3 and 126.

Article 126 says that all judicial power is derived from the people to be exercised by the court in
the name of the people. There are five principles motivating the exercise of judicial power in
Uganda and these are:

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

b. Justice shall not be delayed;

c. Adequate compensation shall be awarded to victims of wrongs;

d. Reconciliation’s between parties shall be promoted and

e. Substantive Justice shall be administered without undue regard to technicalities- this has also
come to be known as the lay counsel’s excuse;

But all this has been subjected to the law. That justice must be done goes to the position of the
party, whether political, social or economical. Justice shall not be delayed and court should try to

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do away with the anything that holds it back. The compensation awarded to victims of wrongs
should be sufficient and court process should be the last resort and where reconciliation can be
afforded, this should take priority. Did the C.A delegated intend that rules of procedure should be
ignored in favour of substantive justice?

JUDICIAL INDEPENDENCE

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

What does the independence entail?

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

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

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

The Constitutional Court held that a person exercising judicial power shall not be liable to any
action or suit for any act or omission by that person in the exercise of judicial power. The
Magistrate was therefore not guilty of any omission or wrongdoing.
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Further more in the case of SerapioRukundo v. AG the Constitutional Court held inter alia that
no action can lie against the Government in respect of an act done in the discharge of judicial
functions of the Attorney General.

REMOVAL OF JUDICIAL OFFICERS:

Article 144 (2) provides for the grounds of the removal of a judicial officer from office and these
include:

(a) Inability to perform the functions of his or her office arising from infirmity of body or mind;
(b) Misbehaviour or misconduct; or

(c) Incompetence.

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

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

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

PRIVILEGES OF JUDICIAL OFFICES:

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

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

The Constitutional Court held inter alia that

(I) When the Petitioner’s fixed salaries are taxed at the end of the month, such taxation has
the effect of reducing, diminishing them naturally, varying them and changing them from
what they were indicated to be in their letters of appointment when they were stated to be
fixed, to a reduced or diminished state which is to their detriment or disadvantage.
Therefore, by taxing the salary or emoluments of a judicial officer, the end result cannot
amount to anything else other than to a variation and a reduction or a diminution of such
income;
(II) While it is the duty of every citizen to play certain roles in the society under art. 17 of
the Constitution, the judicial officer’s role and duties are unique and different. Judicial
officers are charged with safeguarding the fundamental rights and freedoms of the
citizenry. In the performance of their duties, they are entrusted with checking the
excesses of the executive and the legislature. These duties require insulation from any

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 influence, direct,indirect that may warp their judgment or cause them to play into the
hands of corrupt elements especially when there is a climate of political excitement;
(III) The administration of justice is the firmest pillar of Government. The independence of
the judicial officers is of far greater importance than any revenue that could come from
taxing their salaries. An independent judicial officer is indispensable to the
administration of impartial justice and the rule of law. It is therefore important to
appreciate the importance and significance of the entire art. 128;
(IV) The underlying principle of the entire art. 128 is the issue of judicial independence and
security of tenure, the latter being among the traditional safeguards of the former. This
means among other things that the term, office, emoluments and other conditions of
service of judicial officers generally shall not he varied or altered to their detriment or
disadvantage. This is an elementary safeguard to be found in most developed legal
systems where it took many historic struggles to establish on a firm footing as the most
fundamental of all safeguards of judicial officers’ security of tenure;
(V) When whittling away the provisions of the article destroys the elementary safeguard,
and 128 (7) and judicial officers are put at the sufferance of the executive or at the whims
of the legislature, the independence of the judiciary is the first victim. The rational of art.
128 (7) is that there should be adequate salaries and pensions for judicial officers
commensurable with status, dignity and responsibility of office. Poor or inadequate
remuneration gives ground to another cause of corruption, for there are many other
causes. By the nature of their work, judicial officers cannot engage in other business
activities so as to bridge the financial vacuum besetting them. Corruption will therefore
be natured by a system that fails to pay its judicial officers well and insulate them from
the corrupting public;
(VI) The maintenance of judicial independence under art. 128 depends upon public support
for the judicial process to run effectively and independently. It is the public respect for
that principle that sustains it. By ‘public’ is meant the Government to reinforce and
facilitate the effectiveness of the judiciary. The system that expects its judicial officers to
lead decent lives and is often saying so at all public fora but at the same time fails to
enforce the constitutional protection applicable to them is bound to render the
independence of the judiciary unattainable as the corruption vermin would quickly set in;

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(VII) Without undiminishable or untaxable remuneration or compensation, the principle of
independence of the judiciary and of security of tenure will have become nugatory and a
mere mockery. Instead of attracting to the bench a succession of learned men and women
from their lucrative private chambers, the bench will become impoverished and starved
of capable, competent men and women.;
(VIII) Due to the rapid and constituent inflationary erosion of the value of money, it is not
sufficient to merely adhere to the historic formula that judicial emoluments shall not be
reduced, altered or varied to the detriment of judicial officers. What is necessary is to
provide independent machinery and a fair formula to ensure that judicial emoluments
and pensions are effectively augmented to neutralize inflation and thus free judicial
officers of the financial anxieties, which enslave them;
(IX) Within the context of art. 128 (7), ‘judicial officer’ would mean the Justices of the
Supreme Court, Court of Appeal, Judges of the High Court, Registrars and Magistrates.

APPOINTMENT AND THE ROLE OF THE JUDICIAL SERVICE COMMISSION AND

PARLIAMENT IN THE SELECTION OF JUDGES

The case of Justice LetitciaMukasa-Kikonyogo

The case of Justice RemigioKasule

ACCESS AND SPEED OF DETERMINATION OF A CASE

In the case of Charles Onyango-Obbo& Andrew MujuniMwenda v. AG JusticeMulenga

referred to the preliminary order made by the Constitutional Court to stay the hearing of the
constitutional petition pending disposal of the criminal case against the appellants in the
magistrate’s court. “The court made the order at its own initiative, notwithstanding the
unanimous view expressed by counsel on both sides. The Court stated that the petition should
proceed before the criminal trial.” The grounds for doing so were that the purpose of the petition
was to ‘circumvent or even pre-empt the criminal prosecution.’ The court relied on the case of
Arutu John v. AG. However, Justice Mulenga stated, “with the greatest respect to the
Constitutional Court that order was misconceived, and inconsistent with the letter and spirit of
the Constitution.

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Under Article 137, any person may access the Constitutional Court in either of two ways
(directly under Clause 3, or if it has been referred to it by another court (other than a field court
martial) under Clause 5. In any event, under Clause 7, the court must proceed to hear and
determine the petition as soon as possible and may, for that purpose, suspend any other matter
pending before it. And furthermore, where a court refers a question that arises in proceedings
before it, it must await the decision of the question by the Constitutional Court, and ‘dispose of
the case in accordance with that decision.’ ”

Mulenga concluded by stating that,

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

INTERPRETATION Vs. ENFORCEMENT

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

Several cases have been referred to the Constitutional Court in which the issue of interpretation
versus enforcement of the Constitution was at stake. In the case of Isaac Busulwa& 2 ors. V. AG
Constitutional Petition no. 1/02, the Constitutional Court stated that the “question of whether or
not an arrest and detention were lawful or not could be resolved by any court of competent
jurisdiction under Article 50 of the Constitution.”

In the case of Joyce Nakacwa v. A.G &Ors Constitutional Petition no. 2/2002 , the petitioner
proceeded to the Constitutional Court Under art. 137 of the Constitution alleging inter alia that
her rights had been violated when she was denied maternity care and was forced to walk while
still bleeding and weak from the delivery and her clothing all stained with blood.

When the petition came up for hearing, counsel for the respondent raised preliminary objections
touching on the jurisdiction of the court to entertain the petition and the competency of the
petition. In drawing a distinction between matters falling under articles 50 and 137 of the

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Constitution, the Constitutional Court held that allegations made to the Constitutional Court, if
they are in conformity with articles 137 (3), give rise to the interpretation of the Constitution and
the court has the jurisdiction to entertain them. That, “the petitioner is alleging that the conduct
of the medical council has violated her rights guaranteed under specified provisions of the
Constitution. In order to give a declaration on the matter, this court must determine the meaning
of the alleged violated provisions and whether the conduct complained of actually violates them.
The carrying out of this exercise by court is the interpretation of the Constitution and not the
enforcement of rights and freedoms.

The Constitution does not require a constitutional interpretation to determine whether a person’s
constitutional rights have been violated for example if it is established that the person was
arrested without cause and detained for more than 24 hours without being taken to Court. It is a
matter of drawing an inference, which can be done by a competent court.

In that case, an application for redress would be better entertained Under art. 50 of the
Constitution. The Constitutional Court has jurisdiction to entertain matters that would otherwise
fall Under art. 50 if this is done in the process of a Constitutional interpretation Under art. 137 of
the Constitution.

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

The law applicable in matters of the interpretation of the Constitution under article 137 (3) of the
Constitution has been ably laid down in the case of Uganda Journalists Safety Committee
&Ors v AG Constitutional Petition no. 7/97 . Court was also trying to draw a distinction in
relation to the law applicable in matters falling under article 137 (3) and 137 (5) of the
Constitution.

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

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

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

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

The case of Paul KawangaSemogerere v. AG Constitutional Petition no. 3/00 sought to

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

Furthermore, a system set in place by or under an Act of Parliament or any law can be
challenged under Article 137 of the Constitution at anytime notwithstanding the repeal or expiry
of the Act. In the case of Philip Karugaba v. AG, one of the issues concerned the extent of the
jurisdiction of the Constitutional Court. The Petition sought to challenge rule 15 of the Rules of
the Constitutional Court (Petition for Declarations Under Art. 137 of the Constitution),
Directions, 1996 as being inconsistent with article 26 (2) of the Constitution. The rules, it was
alleged denied the estate of a deceased litigant of the right to continue with the case thus
depriving it of the right to property.

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

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

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

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

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

In the case of HarunaKanabi v. Uganda Criminal Appeal 72/95 , the Chief Magistrate who
tried the case at first instance having been confronted with the question of the interpretation of
the Constitution in relation to the offence of sedition as against article 29 of the Constitution
ignored the aspect of the interpretation of the Constitution. On appeal, the High Court by way of
per incurim observed that the trial Magistrate had pointed out by way of per incurium that ‘there
was need for matters like this one to be referred to a Constitutional Court to determine what is
demonstrably justifiable in a free and democratic society and put Uganda in line with the
position of other Jurisdictions.’

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The High Court thus observed:

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

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

The case of Charles Mubiru v. AG Constitutional Petition no. 1/01 emphasizes that for the
Constitutional Court to have jurisdiction, the petition must on its face show that interpretation of
the Constitution is required.

In the case of Charles Kabagambe v. UEB Constitutional Petition no. 2/99, the petitioner
sought to challenge the manner of his dismissal from employment as inconstent with article 42 of
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the Constitution. When the matter came up for hearing, counsel for the respondent raised the
issue of the court’s jurisdiction to entertain the petition as the matters raised did not touch on the
interpretation of the Constitution.’

The Constitutional Court held that:

1. The resolution of the issues raised in the petition does not require the interpretation of art. 42
and for that matter, any provision of the Constitution;

2. A person who seeks to enforce a right or freedom guaranteed under the Constitution by
claiming redress for its infringement or threatened infringement but whose claim does not call
for the interpretation of the Constitution has to apply to any competent court. The Constitutional
Court is competent for that purpose only upon the determination of a petition under art. 137;

3. It is now settled law that if a matter does not require an interpretation of a provision of the
Constitution, there is no juristic scope for the invocation of the jurisdiction of the Constitutional
Court. In the instant case, the petitioner alleges that his rights were violated and claims a
declaration and redress. On the facts available, one cannot rule out wrongful dismissal. This is a
matter dealt with by specific laws. A competent court can enforce such laws and should a
question of interpretation of the Constitution arises, that question can always be referred to this
court.

In the case of Dr. James Rwanyarare&anor v. [Link] Petition 11/97, the

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

In the case of SerapioRukundo v. A.G Constitutional case no. 3/97 , an issue arose before the
Constitutional Court as to the procedure to adopt where a question as to the interpretation of the
Constitution arises in criminal or civil proceedings in a court. The Constitutional Court held that
in such a case, the trial or appellant court does not have to stop the proceedings in that case and
file a petition in the Constitutional Court seeking to resolve that Constitutional issue. The proper
course is to proceed with the case and raise the issue in the course of the hearing and then a
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reference of the issue would be made after the evidence sufficient to substantiate the claim is
recorded.

A similar situation arose in the case of Arutu John v. A.G Constitutional Petition no. 4/97.
The petitioner was charged with the offences of Abuse of Office C/S. 83 of the Penal Code Act
in the Magistrate’s Court. Before the case went for trial, the Petitioner filed a Constitutional
Petition objecting to the criminal proceedings against him and pleading that he enjoyed judicial
immunity from prosecution Under Art. 128 (4) of the Constitution and S.15 of the Penal Code
Act which in effect render the proceedings against him a nullity.

Before the Petition was heard, the criminal case against the Petitioner went for trial and Counsel
for the Petitioner raised the same objection of the judicial immunity enjoyed by the applicant. A
reference was thus made to the Constitutional Court. In the course of hearing the two cases, an
issue arose in the Constitutional Court as to inter alia the procedure to adopt if there is a criminal
trial pending before a Criminal Court and a Constitutional Reference is made to the
Constitutional Court while a Constitution Petition has already been filed with the Constitutional
Court, both cases touching on the same subject matter.

The Constitutional Court held that

“ the proper course to adopt in circumstances where a criminal trial or civil case is pending
before another Court and a Constitutional Reference is made to the Constitutional Court while a
Constitution Petition has already been filed with the same court, both cases touching on the same
subject matter should be to defer the petition and remit the reference to the trial Court with an
Order to the trial court to continue with the proceedings as soon as it is practicable and if
justified on the evidence before it, make a reference to the Constitutional Court.” But an
aggrieved party who is not satisfied with a decision of court and desires to proceed under article
137-(3) (b) does not have a locus standi in the Constitutional Court. This was the decision
reached by the Constitutional court in the case of SerapioRukundo v. A.G. The petitioner who
claimed to be affected by the decision reached by the Court of Appeal in the case of Bakunda
Darlington v. Dr. Kinyatta Stanley &anor sought to proceed to the Constitutional Court under
article 137-(3) (b). The Constitutional Court explained that “the act complained of’ Underart.
137 if it is a decision of court can only be challenged by way of appeal if the law gives the
aggrieved party such right. This is so because the power to interpret statues is vested in the courts.

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Therefore, a decision of a final court has no remedy in the Constitutional Court, as the latter
court is not an appellate court.”

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

The Constitutional Court held that “the Constitutional Court has the jurisdiction to interpret an
Act amending the Constitution. Even when the Act becomes part of the Constitution, it still
remains an Act of parliament and can therefore be challenged in the Court.” The right to petition
the Constitutional Court for interpretation of the Constitution is not limited to only individuals
and citizens but extends to any ‘any person.’

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

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

The Supreme Court went on to hold that ‘after the Constitutional Court has given its decision on
the question referred to it, this Court will dispose of the appeal before it not as the Constitutional
Appellant Court, but as a Court before which the question arose. It will have to dispose of the
appeal in accordance with the decision of the Constitutional Court on the question.’ In case the
decision of the Constitutional Court on the question is appealed against, the Supreme Court held
that then such an appeal would come to it in its jurisdiction as the appellant Constitutional Court

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consisting of all the members of the Court. In case the decision of the Constitutional Court on the
question referred to it is not appealed, then such a decision would stand as the law until it is over-
turned or upheld on appeal by the appellate Court in another case. It is imperative to observe that
there are two kinds of laws that might infringe on the Constitution under article 137-(3) (b).
Existing law and law that has come into force after the enactment of the 1995 Constitution.

The Constitutional court looks at these laws differently. Thus, in the case of Pyarali Abdul
Kasule Ismail v. Adrian Sibo the applicant sought to challenge the provisions of the
Expropriated Properties Act85, passed in 1982 as unconstitutional for depriving him of his right
to property. This was because the aforementioned Act nullified the sale of the suit property to the
defendant and all dealings of any kind in properties which had been expropriated under the
Assets of Departed Asians Decree,86 of 1973 and instead returned it to the respondent, an Asian.

The Constitutional Court in looking at the Expropriated Properties Act in the face of article 26 of
the Constitution held that Act 9/82 must be “construed with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring it in conformity with the 1995
Constitution.” The Constitutional Court went on the observe that the Expropriated Properties Act
1982 may have had a few provisions contrary to the provisions of the 1967 Constitution
especially S. 11 (4) and (6) of the Act. However, since that Constitution is no more, the Act is
good law. Offending sections of that act like section 11 (4) and (6) must be construed so as to
conform to the provisions of article 26 of the 1995 Constitution. How is the Constitution
interpreted? The Constitutional Court is under article 137 vested with the jurisdiction to interpret
Acts of Parliament and even declare them unconstitutional. Such Acts also extend to Acts to
amend the Constitution. This was held in the case of Uganda Law Society &anor v. A.G where
one of the points of contention was whether the Constitutional Court had the jurisdiction to
pronounce themselves on the legality of the Constitutional (Amendment Act) no. 13/2000. The
Constitutional Court held itself as having the jurisdiction to interpret an Act amending the
Constitution. “Even when the Act becomes part of the Constitution, it still remains an Act of
parliament and can therefore be challenged in the Court.”

The case of Joyce Nakacwa v. A.G the Constitutional Court pointed out that allegations made to
the Constitutional Court, if in conformity with articles 137 (3), give rise to the interpretation of
the Constitution and the court has the jurisdiction to entertain them. That the petitioner’s
allegation that the conduct of the medical council had violated her rights guaranteed under

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

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION:

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

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

In the case of Salvatori&anor v. AG Constitutional Petition no. 2/97, the petition sought to
challenge certain sections of the Witchcraft Act as unconstitutional.

The Constitutional Court held that

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

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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. AG Constitutional Petition no. 6/99, the petition
sought inter alia a declaration to the effect that s.15 of the National Assembly (Powers and
Privileges) Act; Cap 249(hereinafter referred to as Cap. 249) is unconstitutional for prohibiting
Members of Parliament and certain employees of Parliament from using evidence of proceedings
in the Assembly or its Committees elsewhere without the special leave of the Assembly having
first been obtained.

The Constitutional Court held that:

1. Principles that govern the construction of statutes also apply to the construction of
Constitutional provisions.
2. The rule of harmony, completeness, exhaustiveness and paramountacy of the Constitution is to
the effect that the Constitution has to be read as an integrated whole and no one particular
provision destroying the other but each sustaining the other.
3. All provisions of the Constitution concerning an issue should be considered together. The
Constitution must be looked at as a whole. However, sight must not be lost of the spirit of our
Constitution that is the establishment and promotion of a just, free and democratic society.
4. The values and principles essential to a free and democratic society must guide the Court,
which include inter alia the inherent dignity of human rights.

5. The burden is on the state to prove that the information sought to be used by a Member or
Officer of Parliament as evidence is within the restrictions of art. 41 (1) and so derogable.

Furthermore, in the case of MasaluMusene Wilson &Ors v. AG Constitutional Petition no.

5/04, the Constitutional Court held that in interpreting the Constitution, where words or phrases
are clear and unambiguous, they must be given their primary, plain, ordinary or natural meaning.
The language used must be construed in its natural and ordinary meaning. The sense must be that,
which the words used ordinarily bore at the time when the statute was passed. All provisions of

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the Constitution concerning an issue should be considered together. The Constitution must be
looked at as a whole. The Constitution has to be given a generous rather than a legalistic
interpretation, aimed at fulfilling the purpose of the guarantee and securing the individuals the
full benefit of the Instrument. Both the purpose and effect of the legislation must be given effect
to.

In the case of Joseph Tumushabe v AG Constitutional Petition 6/04, the Petitioner sought to
challenge inter alia the procedure of the General Court Martial in trying suspects and its refusal
to respect the rights of prisoners in trials before the Court especially the right to bail.

The Constitutional Court held that

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

The case of A.G v. Osotraco Ltd Civil Appeal 32/02, the Court of Appeal pointed out that
when construing the ‘existing law’ such has to be in line with the thinking or norms of
progressive society.

In the case of Dimanche Sharon &Ors v. The Makerere University, Constitutional Cause 1/03,
the Constitutional Court held that inter alia:
I. When interpreting the Constitution, all provisions of the Constitution
concerning an issue are to be considered together, each one supporting the
other so as to give effect to the purpose of the Constitution.
II. Constitutional provisions are to be accorded a generous and purposive
construction especially the part protecting the fundamental human rights and
freedoms. The interpretation should not be legalistic so that fundamental and
human rights are accorded maximum protection.
III. Derogations from fundamental human rights should be given a narrow and
strict construction;

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

In Suzan Kigula& 416 v. AG, Constitutional Petition 8/2003, Constitutional Petition 6/03,
the Constitutional Court held that it is a well known rule of interpretation that to take away a
right given by common law or statute, the legislature should do that in clear terms devoid of any
ambiguity. The right to life is not included in art.44 on the list of the nonderogable rights.
Therefore, arts. 24 (dealing with freedom from torture, cruel, inhuman or degrading treatment or
punishment) and 44 could not have been intended to apply to the death penalty permitted in art.
22 (1)
In the case of Fox Odoi&anor v. AG, the Constitutional Court held that in determining the
constitutionality of a legislation or acts or omission of an authority, the principle of ‘purposes
and effects’ must be considered. If the purpose or effect of implementing a provision of an Act is
inconsistent with a provision of the Act, the Act shall be declared unconstitutional.

PROCEDURE v. SUBSTANTIVE JUSTICE

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

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In the case of Dr. James Rwanyarare&anor v. A.G, Constitutional Petition 11/97, the issue
of the intended meaning of article 126 (2) (e) was addressed by the Constitutional Court. The
petitioners in seeking to avoid rules of procedure relied on article 126-(2) (e) as emphasizing
substantive justice in the face of technicalities. The Constitutional Court lay down the principle
that Article 126-(2) (e) has not done away with the requirement for litigants to comply with the
rules of procedure of litigation.
The Article 96 merely gives constitutional force to the well-known and long established principle
at common law that rules of procedure act as handmaidens of Justice. Justice cannot be properly
administered without following important rules of procedure.

In the case of SerapioRukundo v. AG Constitutional Case no. 3/97, the one who felt
aggrieved by the ruling of the Court of Appeal in Civil Case no.27/1996, Bakunda Darlington v.
[Link] Stanley &Anor that an affidavit commissioned by an advocate without a valid
practicing certificate is invalid proceeded to the Constitutional Court. The petitioner claimed to
be affected by that ruling and attacked it as being inconsistent with art. 126 (2) (e) of the
Constitution.
The Constitutional Court held inter alia that while it is true that when entertaining Constitutional
Matters particularly on questions of human rights, courts should ignore minor irregularities, it is
important that rules of procedure should be followed to ensure smooth and predictable conduct
of Constitutional petitions.

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

The Court further observed that objections touching on the irregularities pertaining to the
supporting affidavit and in respect of violation of fundamental rights of an individual are
distinguishable from objections touching on the fundamental points of law going to the root of
the case. This is so because points of law if decided in one way are decisive of litigation so that

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Rules of Court ought to be taken advantage of in order to dispose of the pleadings immediately
or very shortly after the close of the pleadings.

In the case of Joyce Nakacwa v. AG &Ors, Constitutional Petition no. 2/01, the petitioner’s
claim was inter alia that her rights had been violated when she was denied maternity care and
was forced to walk while still bleeding and weak from the delivery and her clothing all stained
with blood. She however filed her petition outside the time limit for Constitutional Petitions
claiming that she was incapacitated from filing in time as she had been imprisoned soon after the
violation of her human rights.

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

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

Thus, in the case of the Uganda Law Society &anor v. A.G, Constitutional Petition no.
8/2000, the Constitutional Court held failure to state who signed the first petition and the
capacity in which he/she signed as a matter of technicality that is not fatal in view of article 126
(2) (e) of the Constitution.

In the case of SerapioRukundo v. A.G, Constitutional case no. 3/97, at the hearing of the
petition, counsel for the respondent raised a preliminary objection that the petition and the
accompanying affidavit were defective having been drawn by an advocate lacking a valid
practicing certificate. This objection was overruled but two days later, the Court of Appeal in
Bakunda’s ,Court of Appeal Civil Appeal no. 27/96, case ruled that an affidavit
commissioned by an advocate without a valid practicing certificate is invalid. It is on the basis of
that decision that the petitioner brought this petition. The Constitutional Court in addressing the
objection held that “while it is true that when entertaining Constitutional matters particularly on

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questions of human rights, courts should ignore minor irregularities, it is important that rules of
procedure should be followed to ensure smooth and predictable conduct of Constitutional
petitions.” There is a thirty days rule on limitation of the filing of constitutional petitions.

In the case SerapioRukundo v. A.G,Constitutional Case no. 3/97, the Constitutional Court
held that The purpose of the requirement under rule. 4 (1) of the Fundamental Rights and
Freedom (Enforcement Procedures) Rules), 1992, Directions, 1996 requiring the lodging of a
petition within 30 days after the breach of the Constitution complained of takes into account inter
alia the importance of Constitutional cases which must be attended to expeditiously and seeks to
cut out stale cases. Therefore, the time limit also takes into consideration Constitutional petitions.

In the case of Al Haji Nasser NtegeSebaggala v. A.G &Ors, Constitutional Petition 1/99, the
Constitutional Court held that Rule 4 (1) of the Modifications to the Fundamental Rights and
Freedoms (Enforcement Procedure) Rules 1992 Direction prescribes thirty days within which to
lodge a petition after the date of the breach of the Constitution complained of in the petition. A
Constitution Petition is therefore incompetent if it is brought out of time unless the time has been
extended and that where a period of limitation is imposed, it begins to run from the date on
which the cause of action accrues. If the plaint does not plead disability as an exemption from the
limitations required by Order 7, Rule 6 of the Civil Procedure Rules which is coached in
mandatory terms, failure to do so is fatal to the claim outside limitation.

METHODS OF AMENDING THE CONSTITUTION.

There are three ways in which the Constitution can be amended:
1. expressly;
2. by necessarily implication;
3. By infection.
Thus, in the case of Fox Odoi&anor v. A.G, Constitutional Petition 8/2003, the Constitutional
Court pointed out that if an Act of Parliament has the effect of adding to, varying or repealing
any provision of the Constitution, then the Act is said to have amended the affected article of the
Constitution. There is no difference whether the Act is an ordinary Act of Parliament or an Act
intended to amend the Constitution. The amendment may be effected expressly, by implication
or by infection as long as the result is to add to vary or repeal a provision of the Constitution. It is

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not material whether the amending Act states categorically that the Act is intended to affect a
specified provision of the Constitution. It is the effect of the amendment that matters.

In the case of SerapioRukundo v. A.G, Constitutional Case no. 3/97, the Constitutional Court
held that the remedy to amend an offending law lies with Parliament and not with courts. This in
essence also included amending a Constitutional provision.

WHETHER AN ACT OF PARLIAMENT AMENDING THE CONSTITUTION

DISAPPEARS INTO THE CONSTITUTION OR REMAINS AN ACT OF PARLIAMENT

A fundamental question in constitutional law concerns the legal status of an Act of Parliament
that amends the Constitution: once such an Act has amended a constitutional provision, does it
merge into the Constitution and lose its independent existence, or does it continue to exist as an
Act of Parliament? This question implicates the doctrines of constitutional supremacy,
legislative competence, and the hierarchy of norms within a legal system. Under the
Constitution of Uganda, as under most Commonwealth constitutional systems, the correct legal
position is that a constitutional amendment Act does not disappear into the Constitution; rather,
it remains an Act of Parliament, albeit one with a special and limited constitutional function.

NATURE OF A CONSTITUTIONAL AMENDMENT ACT

A constitutional amendment is effected not automatically, but through a deliberate legislative

process. In Uganda, this process is governed by Articles 259 - 262 of the Constitution of the
Republic of Uganda, 1995, which prescribe special procedures, including enhanced
parliamentary majorities and, in some cases, a referendum.

An Act passed under these provisions is commonly titled a Constitution (Amendment) Act.
Although it is enacted under stricter procedural requirements than ordinary legislation, it remains
a statute enacted by Parliament pursuant to its constituent power. Importantly, nothing in the
Constitution suggests that such an Act ceases to exist once the amendment takes effect.

This position reflects the distinction between constituent power and constituted power,
articulated in comparative constitutional jurisprudence, particularly in Kesavananda Bharati v
State of Kerala (1973) 4 SCC 225, where the Supreme Court of India held that Parliament acts
under a special amending power when altering the Constitution, distinct from its ordinary
legislative function.
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WHAT IS ABSORBED INTO THE CONSTITUTION

While the itself remains Act, what is absorbed into the Constitution is the substantive
amendment it introduces. Once the amendment comes into force:

The text of the Constitution is altered by insertion, deletion, or modification of provisions.

The amended provisions derive their authority directly from the Constitution, not from the
Amendment Act.

The Amendment Act’s operative role is spent, meaning it no longer performs an active legal
function.

However, the Act retains legal and historical significance, serving as authoritative evidence of:

The procedure followed,

The date of commencement, and

The intention of Parliament at the time of amendment.

Legal Status After Commencement

Following commencement of a constitutional amendment:

SUPREMACY OF THE CONSTITUTION

Article 2(1) of the Constitution of Uganda affirms that the Constitution is the supreme law, and
Article 2(2) invalidates any law inconsistent with it. Consequently, once amended, the
constitutional provision enjoys supremacy irrespective of the Amendment Act.

SPENT BUT EXISTING STATUTE

The Amendment Act remains on the statute book but cannot be relied upon independently to
challenge or override constitutional provisions. Courts apply and interpret the Constitution as
amended, not the Act.

This approach aligns with the reasoning in R v Secretary of State for the Home Department,
ex parte Fire Brigades Union [1995] 2 AC 513, where the House of Lords distinguished
between statutes with continuing operative force and those whose role has been exhausted but
remain valid laws.
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Courts across Commonwealth jurisdictions consistently treat constitutional amendment Acts as
distinct legal instruments with a limited operative lifespan.

In Hinds v The Queen [1977] AC 195, the Privy Council emphasized that constitutional
amendments derive their legitimacy from adherence to prescribed procedures, but once validly
enacted, the Constitution itself not the amending instrument governs.

Similarly, in Uganda Law Society v Attorney General (Constitutional Petition No. 2 of

2002), the Constitutional Court underscored that constitutional amendments, once passed in
accordance with the Constitution, become part of the supreme law, while the amending
legislation remains a historical record of the process.

These decisions confirm that amendment Acts:

Do not merge into the Constitution, and

Are not ordinary statutes, but occupy a unique category of law.

Position Under the Constitution of the Republic of Uganda

The Ugandan constitutional framework clearly supports this position:

Article 2 establishes constitutional supremacy.

Articles 259 - 262 mandate amendment by Act of Parliament.

No provision extinguishes or absorbs the Amendment Act into the Constitution.

Therefore:

The Constitution remains the source of supreme legal authority.

The Amendment Act remains a statute, though functionally spent.

The amended provisions constitute constitutional law, not statutory law.

In conclusion, an Act of Parliament that amends the Constitution does not disappear into the
Constitution. It remains an Act of Parliament, retaining its identity on the statute book. However,
once the amendment takes effect, the Act’s operative role is exhausted, and the amended
provisions thereafter derive their authority solely from the Constitution. This position preserves

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constitutional supremacy, respects legislative procedure, and maintains doctrinal clarity within
the hierarchy of laws.

FUNDAMENTAL RIGHTS AND FREEDOMS

WHAT IS THE MEANING OF FUNDAMENTAL HUMAN RIGHTS

The protection and promotion of human rights is contained in chapter 4 of the 1995 constitution.

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

CLASSIFICATION OF HUMAN RIGHTS

Human rights tend to be placed in classification including;

i. First generation rights which are largely civil and political rights and are
essentially Eurocentric in origin in Article 21-29
ii. Second generation rights which are social, economic and cultural and are often associated
with the socialist ideology for instance the right to work, housing, education.
iii. Third generation rights which are often collective and attributed to groups and
were largely born out of decolonization of right to clean environment, self-
determination, peace. Development, the self-determination of peoples (for example,
to their politicalstatus and their economic, social, and cultural development) and certain
special rights of ethnic and religious minorities (for example, to the enjoyment of
their own cultures, languages, and religions).

According to Wellman, third generation solidarity rights bring several new aspects to the
international human rights paradigm. First, they impose joint obligations among states, as
opposed to the mere several obligations of first- and second-generation human rights. In other
words, they can only be fulfilled when states and other groups work together. Second,
solidarity rights involve a group right that is unique from and additional to the classic individual
right paradigm.

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Human rights have different manifestations including internationally, the universal
declarations of human rights, UN Convention against torture, and generally the European and
American conventions of 1950 and 1969 respectively and the African charter of Human &
People’s rights of 1981 (Banjul Charter ) and domestically the bill of rights provisions in our
1995 national constitution.

Chapter four commences with article 20, which seeks to define the essential character of rights as
well as responsibility for the protection and promotion of rights.

Article 20[1] provides that fundamental rights and freedoms are inherent and granted by the state.

This differs from the idea of natural rights and that rights accrue to the dignity and worthy of the
individual.

There are certain rights that can indeed fundamentally given that they are non derogable.

(Cannot be limited or restricted). These are provided for under article 44 to include;

1. Freedom from torture, and cruel, inhuman or degrading treatment or punishment, Article
24.

2. Right to a fair hearing Article 28

3. Freedom from slavery, servitude and forced labour, article 25

4. A right to an order of habeas corpus. Article 23[9]

The inherence of rights under article 20 means that human rights are not absolute with
the expectation of those rights that are non-derogable.

Article 44, the rest of the rights under chapter 4 can be subjected to restrictions under the
provisions of article 43.

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

The Protection and Safeguards to The Protection of Fundamental Human Rights Under Chapter
4 of The Constitution of the Republic of Uganda

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Chapter 4 opens with article 20 which deals with the states of human rights and their protection
by government and other members of society. It was best espoused by Lukingira J in Rev.
Christopher Mtikila Vs. AG of Tanzania civil case No.5 of 1993 that fundamental rights are
not gifts from the state. They inherent in a person by reason of his birth and therefore prior to the
state and the law. This means that these rights are merely stated but the constitution does not
purport to be creating them, for they already exist. It is therefore important that the state should
in no way always require permission from its organs and agencies like the Uganda police in
order for the citizens to enjoy these rights. This is the single most thing to remember when
looking at the Bill of Rights.

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

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

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

The Constitutional court held that it is trite law that human rights and freedoms must be enjoyed
within limits as provided under article 43 of the Constitution. Consequently, human rights are not

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

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

In the case of Zachary Olum&anor v. A.G, Constitutional Petition 6/99. The Constitutional
Court held Fair hearing connotes that in accordance with the law, a party is given the necessary
opportunity to canvass all such facts as are necessary to establish his case. The right to a fair
hearing is not derogable.

In the case of A.G v. Osotraco Ltd, Civil Appeal 32/02, Court held that since the 1995
Constitution, the rights, powers and immunities of the State are not immutable anymore. Article
20 enjoins everybody including Government agencies to protect and respect individual
fundamental human rights. The Constitution has primacy over all other laws and the historic
common law doctrines restricting the liability of the State should not be allowed to stand in the
way of constitutional protection of fundamental rights.

RIGHTS AND FREEDOMS INCLUDE THE FOLLOWING:

RIGHT TO BAIL:

In the case of Charles OnyangoObbo&Anor v. A.G, Criminal Miscellaneous Application

145/97, the applicants who had been charged with the offence of publication of false news in the
Chief Magistrate’s Court at Buganda Road, Kampala, sought to challenge inter alia the excessive
amounts of bail fee fixed by the Chief Magistrate in a criminal trial against them. The bail fee as
fixed by the Chief Magistrate was at ushs. 2,000,000/= each and bound in sureties in a non-cash

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each bond of ushs. 5,000,000/= each, which respective amounts were grossly excessive under all
circumstances.

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

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

Furthermore, that the considerations the trial court must consider before granting for bail are
contained in ss. 74 (1) & 75 of the MCA. If after considering them, it comes to the conclusion
that it is probable that the accused will appear to stand his trial, then court will determine the
amount of bail and may require sureties or even include special conditions like for example,
requiring the accused to report regularly to police or deposit his passport in court under s.74 (1)
Magistrate Court Act. The guide to the amount to be fixed is one of reasonableness and that the
fundamental basis for bail is the same in all-criminal cases.

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

That in the instant case, the “circumstances of the case’ which the learned Chief Magistrate
ought to have considered before exercising her discretion on the bond were that the applicants
had been charged with publishing false news case under s. 50 (1) of the Penal Code. It is not
disputed that the applicants had never committed any offence. The offence with which they were

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charged is a misdemeanor, punishable under s.24 of the PCA with a maximum penalty not
exceeding 2 years. The applicants also produced substantial sureties who were accepted by the
Court and also had fixed places of abode. Finally, the State did not object to the bail application.

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

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

In the case of Joseph Tumushabe v. A.G, Constitutional Petition no. 6/2004 the Petitioner, a
human rights activist sought to challenge inter alia the procedure of the General Court Martial in
trying suspects and its refusal to respect the rights of prisoners in trials before the Court
especially in regard to the grant of bail.

The brief background to the petition is that the Petitioner had learnt of the arrest of twenty-eight
people in the Democratic Republic of Congo by Congolese Authorities. The suspects had been
handed over to the Uganda People’s Defense Forces (UPDF). The Petitioner learnt that they
were still in custody but he could not ascertain where they were detained. Together with some
relatives of the detained persons, they file 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. Furthermore, eighteen
months have elapsed since their arrest and no evidence has been adduced against them has not
been commenced against them nor is there 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

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courtmartial is not exempted from the provisions of Chapter Four of the Constitution that
contains the Bill of Rights.

Furthermore, the right to bail is a fundamental right guaranteed by the Constitution. Its basis is
found in art. 28 of the same Constitution, which contains the concept of presumption of
innocence and right of the accused to a fair and speedy trial before an independent and impartial
court or tribunal, established by law. These two principles are part of the right to a fair hearing,
which is declared inviolably under Article 44 of the Constitution. The idea is that a person who is
presumed innocent and who is entitled to a speedy trial should not be kept behind the bars for
unnecessarily long before trial. It is also the rationale of art. 23 of the Constitution which spells
out the right to liberty.

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

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

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

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

ILLEGAL DETENTION

In the case of Godfrey Gahawa for a writ of habeas corpus ad subjiciednum, the issue before
High Court was whether a person can be detained on the strength of a clearly invalid detention
order. It was alleged that the order was invalid because the President had neither signed it nor
had it been shown that the President’s power had been delegated to the Minister alleged to have
signed the Order on behalf of the President. Furthermore, that the order did not bear a public seal

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thereby infringing on ss. 1 and 12 of the Public Order and Security Act. Counsel for the
respondent in reply argued inter alia that the applicant had been taken to court and charged with
criminal offences under the Penal Code Act and his detention therefore lawful. The applicant had
been denied bail. The High Court held that the detention of the applicant on the alleged authority
of the order which is clearly invalid is illegal and were it not for the criminal charge which has
recently been preferred against him, an order for his release would have been issued.

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

FREEDOM OF WORSHIP

In the case of Dimanche Sharon &Ors v. The Makerere University, Constitutional Cause
1/03, the petitioners, Makerere University Seventh Day Adventist Students brought this action
against the University seeking inter alia a declaration under art. 137 of the Constitution that the
respondent policy and regulations of scheduling lectures, mandatory tests and examinations on
the seventh day are inconsistent with and in contravention of inter alia 30 of the Constitution in
respect of petitioners who practice the Seventh Day Adventist Christian faith.

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

i. It is trite law that human rights and freedoms must be enjoyed within limits as provided
under art. 43 of the Constitution. Consequently, human rights are not absolute but
enforceable within reasonable limits;
ii. When interpreting the Constitution, all provisions of the Constitution concerning an issue
are to be considered together, each one supporting the other so as to give effect to the
purpose of the Constitution.
iii. Constitutional provisions are to be accorded a generous and purposive construction
especially the part protecting the fundamental human rights and freedoms. The
interpretation should not be legalistic so that fundamental and human rights are accorded
maximum protection.
iv. Derogations from fundamental human rights should be given a narrow and strict
construction.
v. The standard of proof applied in cases of constitutional interpretation is on a balance of
Probabilities.

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 vi. It is incumbent upon the petitioners to show that they are entitled to the remedies sought
on the ground that their fundamental and human rights have been infringed by the
respondent’s policy. However, the respondent must show justification for a lawful
derogation from such fundamental rights within the ambit of article 43.
vii. Both the purpose and effect of the policy impugned must be examined to determine its
validity or invalidity.
viii. Art. 20(7) gives religious equality but not immunity from observance of the law.
Religious freedom is therefore not an absolute fundamental human right.
ix. The petitioners were adequately notified at the time of admission of the Universities’
academic calendar. They should have turned down the offer of admission if they thought
the policy and regulations offensive.
x. There are many Universities and other tertiary Institutions in Uganda including Bugema
University for the petitioner’s faith. Joining Makerere University was not compulsory and
neither is University education.
xi. Having voluntarily joined respondent, the petitioners cannot be heard to demand from
respondent what is not affordable.
xii. The justification for the respondent’s policy is that the respondent is a public and secular
institution and as such has no duty to accommodate some beliefs based on religious
tenements. The respondent’s policy and regulations do not in any way ask the petitioners
to give up their religious convictions and become secular.
xiii. The respondent’s policy did not in any way force the petitioners to pursue a cause of
action they would not have taken. They were free to participate or not in the respondent’s
educational programs held on the Sabbath and neither did they prevent them or any
member of their faith from believing in the dictates of their faith to which they subscribe.
xiv. It is no where stated in the respondent’s policy and regulations that the petitioners should
give up their religious convictions and become secular.
xv. The purpose and effect of the respondent’s policy is to inter alia improve the quality of
education, enhance accessibility to education by more people and reduce the cost of
education. It is applicable to all students many of whom have similar religious beliefs and
convictions but accepted the programme. The University policy was not intentionally
directed at the petitioners but was applicable to all students and groups at various times. It
was intended to benefit the majority student population.

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xvi. The policy and regulations of the respondent did not impose on the petitioners an
unconstitutional burden by virtue of their faith. They did not even undermine the
petitioners constitutionally guaranteed right to education under art. 30
xvii. The respondent’s duty to accommodate the Seventh Day Adventist Students Minority is
conditional on the policy on the petitioner’s rights under art. 20 of the Constitution and is
not prejudicial to other people’s rights in the University.

FREEDOM OF EXPRESSION:
The right to freedom of expression is not absolute…
In the case of HarunaKanabi v. Uganda, Criminal Appeal 72/95, the appellant, the registered
proprietor of a News Paper called ‘the Shariat’ was tried by the Chief Magistrate’s Court for
publishing an article in his newspaper in which he alleged that Rwanda was the 40th District of
Uganda and President Museveni of Uganda had visited it at the material time to solicit for votes.
The appellant was convicted of the offences of sedition case under s. 41 (1) (a) and s. 41 (1) (c)
and publication of false news case under s. 50 (1) both offences under the penal Code Act (PCA).
He was sentenced to inter alia 5 months imprisonment and a fine. Dissatisfied with both the
conviction and the sentence, the appellant proceeded to the High Court, thus this appeal.

The High Court held that

i. It is apparent that by their character and timing, the contents of the Publication by the
appellant that alleged that Rwanda was the 40th District of Uganda and that the President
had visited it at that material time for votes, That the contents were seditious. The people
of Uganda were being told that their money was being squandered on Rwandans who
were also likely to participate in the impending elections in Uganda.
ii. A seditious intent may be inferred from the liberal itself without any extrinsic Evidence
of it. If words are seditious by their expression, a seditious Intention appears without any
extrinsic evidence.
iii. The contents of the publication were calculated to bring contempt or to Excite
disaffection against the person of the President or the Government of Uganda as by law
established. It is immaterial whether they did bring about such consequences or not.

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RIGHT TO EDUCATION:

In the case of Pius Niwagaba v. The Law Development Centre, Civil Division Application
589/05, the applicant, who was a Law graduate from one of the private Universities, Uganda
Pentecostal University (UPU), applied to the respondent, the Law Development Centre
(hereinafter referred to as ‘LDC’ or the ‘respondent’) to pursue a Post- Graduate Diploma in
Legal Practice, successful completion of which would enable him practice law. LDC is the only
public vocational professional course in the country and it is mandatory for all lawyers desirous
of practicing law to enroll with the Institution and pass the course. The respondent declined to
enroll the applicant along with other graduates from the same University and informed them that
their University had not been approved and recognized by the Law Council for purposes of
admission of its students to the Post- Graduate Bar Course at LDC. They learnt that the only
Universities that had been approved were Makerere University and Uganda Christian University,
Mukono.

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

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

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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 University, Constitutional Cause
1/03, the petitioners, Makerere University Seventh Day Adventist Students brought this action
against the University seeking inter alia a declaration u/art. 137 of the Constitution that the
respondent policy and regulations of scheduling lectures, mandatory tests and examinations on
the seventh day are inconsistent with and in contravention of arts. Inter alia 30 of the
Constitution in respect of petitioners who practice the Seventh Day Adventist Christian faith.
The Constitutional Court held inter alia:
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 i. It is trite law that human rights and freedoms must be enjoyed within limits as provided
under art. 43 of the Constitution. Consequently, human rights are not absolute but
enforceable within reasonable limits;
ii. The petitioners were 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.
iii. 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;
iv. Having voluntarily joined respondent, the petitioners cannot be heard to demand from
respondent what is not affordable;
v. 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;
vi. 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;
vii. It is no where stated in the respondent’s policy and regulations that the petitioners should
give up their religious convictions and become secular.
viii. 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;
ix. 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;
x. The policy and regulations of the respondent did not impose on the petitioners an
unconstitutional burden by virtue of their faith. They did not even undermine the
petitioners constitutionally guaranteed right to education under art. 30;

117
 xi. The respondent’s duty to accommodate the Seventh Day Adventist Students Minority is
conditional on the policy on the petitioner’s rights under art. 20 of the Constitution and is
not prejudicial to other people’s rights in the University.

RIGHT TO PROPERTY:

In the case of Pyarali Abdul Kasule Ismail v. Adrian Sibo, Constitutional Case no. 9/97, the
background to the reference is that Pyarali, an Asian who is the respondent (hereinafter referred
to as the ‘plaintiff’) was up to 1972 the registered owner of freehold land in Bulemezi
(hereinafter referred to as the ‘suit property).

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

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

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

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

118
In the meantime, the plaintiff sued the defendant for physical possession of the suit property and
one of the issues at the trial was whether the Expropriated Properties Act no.9/83 to the extent
that it nullifies the sale of the suit property to the defendant and accordingly deprived him of his
proprietary interest therein contravenes the Constitution of the Republic of Uganda and is
thereby null and void thus this reference.
The Constitutional Court held that:

(1) The Expropriated Properties Act 9/82 which had the effect of depriving some people of the
property they had legally bought from the DAPC did not violate the spirit of art. 13 of the 1967
Constitution because the Act provides for compensation;

(2) Compensation means what is given to the owner compelled to sell. It is the right to be put, so
far as money can do it, in the same position as if his land had not been taken from him. In other
words, the recipient gains the right to receive a money payment not less than the loss imposed on
him in the public interest, but on the other hand, not greater;

(3) Compensation should be assessed at the market value of the property at the time of judgment.
Fluctuations of currency where applicable must be taken into account in assessing what
reasonable compensation was due.

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

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

119
In the case of AG v. Osotraco Ltd, Civil Appeal no. 32/02

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

The brief background to the appeal is that the respondent claimed to be the registered proprietor
of the suit property. The suit property was however at the time of acquisition and thereafter
occupied by the Ministry of Information who refused to vacate despite the request to do so. The
Ministry claimed the property to be theirs thus the suit against them.

(I) Since the 1995 Constitution, the rights, powers and immunities of the State are not
immutable anymore. Article 20 enjoins everybody including Government agencies to protect and
respect individual fundamental human rights. The Constitution has primacy over all other laws
and the historic common law doctrines restricting the liability of the State should not be allowed
to stand in the way of constitutional protection of fundamental rights.
(II) Art. 26 protects the respondent’s right to own property. The respondent having obtained
judgment is clearly entitled to a meaningful form of redress under art. 50 of the Constitution

In the case of Phillip Karugaba v. AG, Constitutional Petition no. 11/02, the petition sought
to challenge rule 15 of the Rules of the Constitutional Court (Petition for Declarations Under art.
137 of the Constitution), Directions, 1996 as being inconsistent with article 26 (2) of the
Constitution for depriving the estate of the deceased person of his right to property. .

1. The Constitutional Court held that a judgment of court is property. The expression
“ chose in action” is used to describe all personal rights of property which can only be
claimed or enforced by action and not by taking physical possession;
2. A right to file a Constitutional Petition is not property in terms of art. 26 (2). It is only a
legal action of a special nature. Such right is personal and cannot be assigned. It is not
property capable of being compulsory acquired and taken possession of by anybody;
3. Where the estate of the deceased petitioner seeks redress, the action can be instituted in a
court of competent jurisdiction and if a question of constitutional interpretation arises, the
same can be referred to this court under art. 137 (5) of the Constitution;

120
 4. The right of proceeding in a court of law by a deceased person to recover pecuniary
damages for tortuous wrongs inflicted on her can be pursued by her estate for the benefit
of her dependants in a competent court under the Law Reform (Miscellaneous. Provisions)
Act, Cap. 74. This right of action does not have to abate even when the main action
commenced by the deceased abates upon her death;
5. A chose in action, which is property, is a right of action in a court of law to recover a sum
of money or pecuniary damages for tortuous wrongs or non-performance of a contract.
This right of action need not be translated into a judgment to be property;

6. Rule 15 of the Rules of the Constitutional Court (Petition for Declarations Under art. 137
of the Constitution) Directions 1996 is mandatory. A petition abates upon the death of a
sole petitioner;
7. In order for the petitioner to bring himself within the ambit of article 26, he bears the
burden to prove that he is a person who has an interest over the property either
individually or in association with the deceased. He has also to show that he was deprived
of his property compulsorily Under rule. 15 and that there was no provision made for
prompt payment of fair and adequate compensation.

In the case of Salvatori&anor v. AG, Constitutional Petition no. 2/97, the petitioner and
(another since deceased and therefore no longer a party to the petition) were charged with
practicing witchcraft c/s. 3 (3) of the Witchcraft Act. He sought to challenge its constitutionality
as inter alia depriving him of his right to property.

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

THE RIGHT TO A FAIR HEARING:

The right to a fair hearing has a number of ingredients. Provided for under Article 28 of the
Constitution of the Republic of Uganda 1995, the right comprises of a fair, speedy and public

121
hearing before an independent and impartial court or tribunal established by law. The Article
goes on to stipulate the presumption of innocence. An accused person also has a right to be
informed in a language that he understands of the nature of the offence, be afforded adequate
time and facilities for the preparation of his/ her defence, be permitted to appear before the court
in person or at that person’s own expense by a lawyer of his/ her choice, legal representation at
the expense of the State in capital cases, the assistance of an interpreter and facilities to examine
witnesses and obtain the attendance of other witnesses before the court….
Thus, in the case of Salvatori&Nor v. AG, Constitutional Petition no. 2/97, the petitioner and
(another since deceased and therefore no longer a party to the petition) were charged with
practicing witchcraft c/s. 3 (3) of the Witchcraft Act, Cap. 108, pleaded guilty and was
accordingly sentenced to twenty-two months imprisonment and banished from his home for 10
years after serving the prison sentence. His appeal to the Chief Magistrate was dismissed.

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

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

The Constitutional Court held that:

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

122
The case of Suzan Kigula& 416 v. AG, Constitutional Petition no. 6/03 one of the issues
before court was whether the death penalty process was a form of torture, cruel, inhuman or
degrading punishment. The petitioners, all of whom were at the time of filing the petition on
death row, in their petition contended inter alia that the imposition of the death sentence on them
was unconstitutional for being inconsistent with Arts. 24 and 44 of the Constitution. The
petitioners went on to contend in the first alternative that the various provisions of the laws of
Uganda, which provide for mandatory death sentence, are inconsistent with arts. Inter alia 24 of
the Constitution. That though the Constitution guarantees protection of the rights and freedoms
such as, equal treatment before the law, the right to a fair hearing etc, the provisions which
provide for mandatory death sentence contravene those Constitutional [Link] a convict
who is sentenced under such a mandatory provision is denied the right to appeal against sentence
only. They also argued in the second alternative that a long delay between the pronouncement of
the death sentence and the carrying out of the sentence allows for a death syndrome to set in.
That carrying out of the death sentence after such a long delay constitutes a cruel, inhuman and
degrading treatment prohibited by arts.24 and 44 of the Constitution.

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

i. 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;

ii. 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
123
 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);

iii. 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;

iv. 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;
v. S. 132(1) (b) of the Trial on Indictments Act, Cap. 23 which makes provision for an
appeal to the Court of appeal against the sentence alone imposed by the High Court, other
than one fixed by law denies a convict who is also sentenced under the provisions where
the sentence is fixed by law to appeal against sentence only. Yet art.21 (1) of the
Constitution guarantees equal protection before and under the [Link] 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

124
 sentences are not fixed by law. This is repugnant to the principle of equality before the
law and fair trial;

vi. 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 [Link]. 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);

vii. 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;

viii. 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;

125
 ix. The Constitution sets up the Advisory Committee set up under art. 121 of the
Constitution to advise the President in the exercise of his discretion on prerogative of
mercy. The article is operationalised by s. 102 of the Trial on Indictments Act and s. 34
of the Prisons Act that provide procedures to be followed to seek prerogative of mercy.
Neither the Constitution, nor those statutory provisions have set up a time frame within
which the prerogative of mercy process should be completed. The prerogative of mercy is
an executive process that comes after the judicial process is concluded. It is important
that the procedure seeking pardon or commutation of the sentence should guarantee
transparency and safeguard against delay;

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

FREEDOM FROM TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT

OR PUNISHMENT:

Article 24 of the Constitution lays down provisions for respect for human dignity and protection
from inhuman treatment. Aspects of this right have been ably discussed by the different courts
and tribunals. Interestingly, the right has aspects of other rights and cannot be discussed
independent of these rights.
In the case of Suzan Kigula v. AG Constitutional Petition no. 6/03, one of the issues before
court was whether the death penalty process was a form of torture, cruel, inhuman or degrading
punishment. The petitioners, all of whom were at the time of filing the petition on death row, in
their petition contended inter alia that the imposition of the death sentence on them was
unconstitutional for being inconsistent with arts.24 and 44 of the Constitution. The petitioners
went on to contend in the first alternative that the various provisions of the laws of Uganda,
which provide for mandatory death sentence are inconsistent with arts. Inter alia 24 of the
126
Constitution. They also argued in the second alternative that a long delay between the
pronouncement of the death sentence and the carrying out of the sentence allows for a death
syndrome to set in. That carrying out of the death sentence after such a long delay constitutes a
cruel, inhuman and degrading treatment prohibited by arts.24 and 44 of the Constitution.

In the final alternative, the petitioners contended that section 99 (1) of the Trial on Indictments
Act (Cap. 23 of the Laws of Uganda) which provides for hanging as the legal mode of carrying
out a death sentence was cruel, inhuman and degrading as it contravenes arts.24 and 44 of the
Constitution. The Constitutional Court held inter alia that it is a well known rule of interpretation
that to take away a right given by common law or statute, the legislature should do that in clear
terms devoid of any ambiguity. The right to life is not included in art.44 on the list of the non-
derogable rights. Therefore, articles 24 (dealing with freedom from torture, cruel, inhuman or
degrading treatment or punishment) and 44 could not have been intended to apply to the death
penalty permitted in art. 22 The imposition of the death penalty therefore does not constitute
cruel, inhuman or degrading punishment and the various provisions of the laws of Uganda that
prescribe the death sentence are not inconsistent with or in contravention of arts. 24 and 44 or
any provision of the Constitution;

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

In regard to the issue of the lapse of time before the death sentence is carried out, the
Constitutional Court held that the condemned prisoners did not lose all their constitutional rights
and freedoms except those rights and freedoms that have inevitably been removed from them by
law, either expressly or by necessary implication. The condemned prisoners are entitled to the
protection of articles 24 and 44 (a) of the Constitution in respect of their treatment while they are
in confinement before execution. They are not to be subjected to cruel, inhuman or degrading
treatment. The conditions and the fear that the convicts on death row live in portray a very grim

127
picture of the conditions in the condemned section of Luzira Prison. They are demeaning
physical conditions. Such conditions coupled with the treatment meted out to the condemned
prisoners during their confinement are not acceptable by Ugandan standards and also by the
civilized international communities. Inordinate delays in such conditions indeed constitute cruel,
inhuman or degrading treatment prohibited by articles 24 and 44 (a) of the Constitution of
Uganda.

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

The Court also observed that Constitution sets up the Advisory Committee set up under art. 121
of the Constitution to advise the President in the exercise of his discretion on prerogative of
mercy. The article is operationalised by s. 102 of the Trial on Indictments Act and s. 34 of the
Prisons Act that provide procedures to be followed to seek prerogative of mercy. Neither the
Constitution, nor those statutory provisions have set up a time frame within which the
prerogative of mercy process should be completed. The prerogative of mercy is an executive
process that comes after the judicial process is concluded. It is important that the procedure
seeking pardon or commutation of the sentence should guarantee transparency and safeguard
against delay.

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

128
EQUALITY BEFORE THE LAW:
The right to equality before the law also has different aspects. Provided for under article 21 of
the Constitution,
The case of Suzan Kigula v. AG, Constitutional Petition no. 6/03, one of the issues before
court was whether the death penalty process was a form of torture, cruel, inhuman or degrading
punishment. The petitioners, all of whom were at the time of filing the petition on death row, in
their petition contended inter alia that the imposition of the death sentence on them was
unconstitutional for being inconsistent with arts. 24 and 44 of the Constitution.

The petitioners went on to contend in the first alternative that the various provisions of the laws
of Uganda, which provide for mandatory death sentence are inconsistent with arts. Inter alia 24
of the [Link] though the Constitution guarantees protection of the rights and freedoms
such as, equal treatment before the law, the right to a fair hearing etc, the provisions which
provide for mandatory death sentence contravene those Constitutional provisions. That a convict
who is sentenced under such a mandatory provision is denied the right to appeal against sentence
only. They also argued in the second alternative that a long delay between the pronouncement of
the death sentence and the carrying out of the sentence allows for a death syndrome to set in.
That carrying out of the death sentence after such a long delay constitutes a cruel, inhuman and
degrading treatment prohibited by arts.24 and 44 of the Constitution. In the final alternative, the
petitioners contended that section 99 (1) of the Trial on Indictments Act (Cap. 23 of the Laws of
Uganda) which provides for hanging as the legal mode of carrying out a death sentence was cruel,
inhuman and degrading as it contravenes arts.24 and 44 of the Constitution.
The Constitutional Court held inter alia that :
(1) It is a well known rule of interpretation that to take away a right given by common law or
statute, the legislature should do that in clear terms devoid of any ambiguity. The right to life is
not included in art. 44 on the list of the non-derogable [Link], 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;

129
(2) A fair hearing must basically mean hearing both sides. Refusing or denying a convict facing a
death sentence to be heard in mitigation when those facing lesser sentences are allowed to be
heard in mitigation is clearly unjustifiable discrimination and unfair. It is neither consistent with
the principles of equality before and under the law guaranteed in art. 21, nor with the right to a
fair hearing guaranteed in arts.22 (1), 28 and entrenched in art. 44 (c);

(3) The procedure in s. 98 of the Trial in Indictments Act that denies the court opportunity to
inform itself on any mitigating factors regarding the sentence of death deprives the court the
chance to exercise its discretion to determine the appropriateness of the sentence. It compels the
Court to impose the sentence of death merely because the law directs it to do so. This is an
intrusion by the legislature into the realm of the Judiciary. For the legislature to define the
offence and prescribe the only sentence which the court must impose on conviction without
affording the court opportunity to exercise its discretion to determine the appropriateness of the
sentence is clearly a violation of the principle of separation of powers;

(4) The generous and purposive interpretation of the provision would require exercise of
discretion by the appellant court on whether or not to confirm the death sentence. This would be
done upon consideration of the circumstances of the offence and of the offender since the
circumstances of murders or aggravated robbery and of their offenders are not exactly the same.
Those differences determine the appropriateness of the sentence to be imposed in each case. But
again, the procedure in s. 98 of the Trial on Indictments Act that does not permit the convict
under a mandatory sentence of death provision to be heard in mitigation before he or she is
sentenced or permits court to inform itself on the appropriateness of the sentence to pass in the
case of mandatory death sentence contravenes art. 22 (1) of the Constitution;

(5) S. 132(1) (b) of the Trial on Indictments Act, Cap. 23 which makes provision for an appeal to
the Court of appeal against the sentence alone imposed by the High Court, other than one fixed
by law denies a convict who is also sentenced under the provisions where the sentence is fixed
by law to appeal against sentence only. Yet art.21 (1) of the Constitution guarantees equal
protection before and under the [Link] there is no justifiable reason for denying a convict who
is sentenced to a sentence fixed by law to appeal against sentence only.

130
For example, it forbids convicts of the death sentence for murder or aggravated robbery to
appeal against sentence but allows others whose sentences are not fixed by law. This is
repugnant to the principle of equality before the law and fair trial;

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

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

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

131
(9) The Constitution sets up the Advisory Committee set up under art. 121 of the Constitution to
advise the President in the exercise of his discretion on prerogative of mercy. The article is
operationalised by s. 102 of the Trial on Indictments Act and s. 34 of the Prisons Act that provide
procedures to be followed to seek prerogative of mercy. Neither the Constitution, nor those
statutory provisions have set up a time frame within which the prerogative of mercy process
should be completed.
The prerogative of mercy is an executive process that comes after the judicial process is
concluded. It is important that the procedure seeking pardon or commutation of the sentence
should guarantee transparency and safeguard against delay; The spirit of the constitution
demands that whatever is to be done under it affecting the Fundamental Rights and Freedoms
must be done without unreasonable delay and s.34 (2) of the Interpretation Act, Cap 3 provides
that where no time is prescribed or allowed within which anything shall be done, that thing shall
be done, without unreasonable delay.

A delay beyond three years after the condemned prisoner’s sentence has been confirmed by the
highest appellant court would tend towards unreasonable delay. Therefore, the condemned
prisoners who have been on death row for five years and above after the appellate courts had
confirmed their sentences had waited longer than constitutionally permissible

THE RIGHT TO LIFE

The right to life is one of the most respected rights in the Constitution. The debate on what
constitutes these right ranges on with many scholars arguing that it extends to all aspects that
constitute an adequate and reasonable life. Thus, in the case of SalvatoriAbuki&Anor v. AG,
Constitutional Petition no. 2/97, the Constitutional Court of Uganda held the deprivation of
shelter, food and essential sustenance as the consequence of Exclusion Order under the
Witchcraft Act (now repealed) as threatening the right to life or to leading to the loss of the right
to life and therefore not permissible under the Constitution.

Article 22 of the Constitution does not however makes the right to life absolute but does give
instances where it is lawful to intentionally deprive a person of this right. These instances are
close cut and are only limited to cases of execution of a sentence passed in a fair trial by a court
of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the
conviction and sentence have been confirmed by the highest appellant court. There are however

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instances under the Laws of Uganda where an excuse can be afforded for the deprivation of life.
Some of these instances appear to permit the intentional deprivation of the right to life.

One qualifying factor however is that the killing is deemed unlawful. Thus, under S. 192 of the
Penal Code Act, if the killing that is unlawful is done under circumstances which but for the
section would constitute murder, such killing done in the heat of passion caused by sudden
provocation as defined in S. 193 and before there is time for his/ her passion to cool, the offence
committed is reduced to manslaughter. Other defenses that might excuse the unlawful
deprivation of the right to life include Constitutional Petition no. 2/97
SeeSalvatoriAbuki&Anor v. Uganda Constitutional Petition no. 2/97. Actually, the unlawful
intentional deprivation of the right to life with malice aforethought is termed as murder and is
punishable under S. 189 of the Penal Code Act, Cap. 120, Laws of Uganda. Laws of Uganda,
Cap. 120 mistake of fact, insanity, intoxication, compulsion and the defense of person/property.
The operation of these defenses must however be limited to the meaning and scope attached to
them under the different provisions of the Penal Code Act. The death penalty is the way the
execution of a court sentence geared towards depriving the individual of the right to life is
carried out.
Court in the case of Suzan Kigula&Ors v. A.G, Constitutional Petition no. 6/03, held the
death penalty as stipulated under Art. 22 of the Constitution as a recognized exception to the
right to life and therefore Constitutional. The same case shows that death penalty although has its
advocates has of recent been judiciously challenged. Thus, in the case of the question of the
constitutionality of the death penalty was addressed. In this case, the petitioners, all of whom
were on death row sought to challenge the death sentence as unconstitutional.

The Constitutional Court held inter alia that in regard to the issue of the lapse of time before the
death sentence is carried out, the condemned prisoners did not lose all their constitutional rights
and freedoms except those rights and freedoms that have inevitably been removed from them by
law, either expressly or by necessary implication. The spirit of the constitution demands that
whatever is to be done under it affecting the Fundamental Rights and Freedoms must be done
without unreasonable delay and s.34 (2) of the Interpretation Act, Cap 3 provides that where no
time is prescribed or allowed within which anything shall be done, that thing shall be done,
without unreasonable delay. A delay beyond three years after the condemned prisoner’s sentence
has been confirmed by the highest appellant court would tend towards unreasonable delay.

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Therefore, the condemned prisoners who have been on death row for five years and above after
the appellate courts had confirmed their sentences had waited longer than constitutionally
permissible.
Another case attacking the death penalty was filed by the Uganda Law Society , the application
sought to challenge the constitutionality of the National Resistance Statute no.3/92 in so far as it
provides for the passing of death sentences at all or without an appeal to the Supreme Court. The
applicants are thereby seeking for an Order stopping the operation of s. 92-(1) (a) of the Statute.

The Constitutional Court held that:

Death is final and puts an end to everything. However, one has to balance it with higher
objectives the punishment is intended to achieve. The necessity for the death sentence in a field
operation cannot be underestimated for in field operations, tough decisions and actions are sine
quo non. Therefore, on a balance of convenience, it is not proper to suspend the operation of s.92
of the NRA Statute.

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

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

The right of the unborn child is protected under article 22 (2). Such right is however qualified by
the authority of the law.
THE RIGHT TO HABEAS CORPUS:
Habeas corpus is a constitutional right that secures the right to be tried according to the law or to
be released. The writ of habeas corpus is used to question the legality of restraint and thereby
facilitates the release of persons in unlawful custody.

Provisions relating to the right to habeas corpus are entrenched in articles 23 (9) and 44 (d) of the
Constitution. This right is non-derogable, inviolable and cannot be suspended. A writ for habeas

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corpus is granted in two stages. Once a decree nisi has been granted, it has to be returned by the
party to whom it is directed.

Whereas the application for the writ may be made from the moment of arrest, where there have
been valid proceedings subsequent to the arrest, which were offered in justification of detention,
a prisoner will not get redress by habeas corpus. Court has jurisdiction to deal with a person
before it no matter how improper the procedure that brought that person before it. This was held
in the case of Re: A reference from the High Court of Uganda and Re: Sheik Abdul K.
Sentamu& Anor,143 where an application for a writ of habeas corpus subjuciendum against the
Inspector General of Police for the applicant’s production before court was lodged. Counsel for
the applicants averred that the applicants had been arrested in various places by the police
between May 2 1998 and May 25, 1998, detained in different places and had not been charged
and produced before court c/art.23 (4) (b) of the Constitution. The High Court granted them an
order nisi on June 8, 1998 returnable on June 12, 1998. The writ was extended and returned
several times but the applicants were not produced in court. The applicants were later charged
with the offence of treason.
Counsel for the applicants submitted that since the applicants were charged after the order nisi
was made, there had been a violation of art.23 (5) (b) of the Constitution. He therefore requested
for a reference on the matter to the Constitutional Court, which was granted u/art.137 (5) (b) of
the Constitution.

THE RIGHT TO BAIL:

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

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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.
MuhamuduSebi, Criminal Session 227/75 the applicant on trial for aggravated robbery
sought to inter alia apply for bail. The High Court held inter alia that the it had power at
any stage of the proceedings to grant bail. This power, it held, is not restricted. ‘However,
in considering granting bail, it has to consider certain guiding principles. In murder cases,
bail should be granted only in exceptional circumstances. The applicant is presently
facing a charge of aggravated robbery, which carries a mandatory sentence of death on
conviction. He is also going to face a murder trial. In these circumstances, the temptation
to escape in order to escape the supreme penalty is great. The fact that he is a soldier in
the army is no guarantee.’ Today, in cases involving applications for the writ of habeas
corpus, the High Court has jurisdiction to grant bail to the accused person up to when the
writ of habeas corpus is returned with a charge.

(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
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committed for trial in the High Court for 360 days. This was the observed in the case of
Joseph Tumushabe v. AG

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

The brief background to the petition is that the Petitioner had learnt of the arrest of
twenty-eight people in the Democratic Republic of Congo by Congolese Authorities. The
suspects had been handed over to the Uganda People’s Defense Forces (UPDF). The
Petitioner learnt that they were still in custody but he could not ascertain where they were
detained. Together with some relatives of the detained persons, they filed an application
for a writ of habeas corpus in the High Court against the Army Commander and Attorney
General. It was returned with an indication that the twenty five persons had been
remanded at Makindye Military Police Prisons on charges of Treason c/s. 25 of the Penal
Code Act except two who were under the detention of UPDF. The petitioner went on to
argue that since then, the detained persons have remained on remand and attempts to
apply for bail have been refused by the General court-martial and that eighteen months
have elapsed since their Criminal Session 227/75 Joseph Tumushabe v. AG, arrest and
no evidence has been adduced against them has been commenced against them nor is
their any trial in sight.

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

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

END

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