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Constitutional Petition No. 48 of 2010 1. The issues that arise for determination in this petition are four. Some of them, or, at least one of them, is similar to some, or, one of the issues that arose in constitutional petition no. 37 of 2010. We shall proceed to address each one of them below. Whether the act of workers representatives in Parliament and persons intending to represent workers in Parliament participating in partisan elections as political party flag bearers at any level is inconsistent with and contravenes Articles 29 and 40 of the Constitution 1. The right and freedom to participate in political organisations as well as trade unions is protected under Article 29 of the Constitution. The right to freely associate, form and join trade unions is further protected as a specie of social and economic rights under Article 40 of the Constitution. These two rights or fundamental freedoms are not at war with each other and do exist side by side without conflict. 1. We are not persuaded that persons representing or intending to represent workers in Parliament infringe any of the aforesaid Articles by being sponsored or associating with any political party or organisation. Indeed the contrary would be true if they were denied to associate for political purposes because they associate together in a trade union or vice versa. We answer this issue in the negative. Whether Regulation 12 of the Parliamentary Elections (Special Interest Groups) Regulations 2001 as amended by Statutory Instrument No.6 of 2011 is inconsistent with and contravenes Articles 29(1) (e) and 40(3) of the Constitution. 1. We have already held under CP No. 37 of 2010 that regulation 12 of the Parliamentary Elections (Special Interest Groups) 2001 as amended by SI No. 6 of 2011 contravenes Article 78(4) of the Constitution but does not contravene Article 29(1) (e) of the same. For the same reasons we hold that the provisions of the Regulation do not contravene Articles 29(1) (e) and 40(3) of the Constitution as claimed by the Petitioner in Constitutional Petition No. 48 of 2010. Both these two provisions are protecting the right to associate whether for political or civic purposes or social and economic purposes. 1. The fact that there are members of the special interest group of workers who were excluded from participating in the elections of representatives because the electoral colleges that elect such members were from voluntary associations is not an infringement of the right to associate as it is an infringement of the right to vote vide Article 59 (1) read together with Article 78(1) (c) of the Constitution in the special interest group in question. Whether the act of workers representatives in Parliament who hold permanent and salaried offices at the same time in their respective trade unions and federations is inconsistent with the spirit of Article 40(3) of the Constitution. 1. Article 40(3), as we have endeavoured to explain above, is intended to protect social and economic rights including specifically to form trade unions. Having workers' representatives in Parliament who are also permanent and salaried offices in their trade unions might raise a policy issue for those unions as to whether a person should occupy both offices at the same time. This, however, is not a constitutional question for interpretation of the Constitution. It is for the individual trade unions and federations to decide or provide for it in their bye laws. We answer the issue in the negative. 1. We have held that the law in force in relation to the elections of the special interest groups of the army, youth and workers is unconstitutional for reasons we have elaborated herein above. It was prayed by the

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Kasozi & 3 Ors v Attorney General & 2 Ors

Judgment

Question Presented: Whether forcing PWDs to be members of NUDIPU-affiliated associations to vote (as per Regulation 10) violated their constitutional rights, including the freedom of association (Article 29(1)(e)), the right to participate in public affairs (Article 38(1)), the right to redress (Article 50(1)), and the right to vote (Article 59(1)); Whether Parliament unconstitutionally abdicated its mandate under Article 78(4) of the Constitution by delegating the power to create electoral procedures to a Minister instead of prescribing them directly through legislation; and whether the legal framework for PWD elections, particularly after the 2013 legislative amendments, was constitutional.

Alleged Acts: In 2010, the petitioners challenged the constitutionality of the legal framework governing the election of representatives for special interest groups, including Persons with Disabilities (PWDs), to the Parliament of Uganda. The petitions were not heard until late 2015. In the interim, the 2011 general elections were conducted under the challenged rules. The 2011 electoral process for PWD representatives utilized an electoral college system that relied on the National Union of Disabled Persons of Uganda (NUDIPU), a voluntary non-governmental organization. Regulation 10 of the applicable electoral regulations effectively required any PWD wishing to participate in the electoral college to be a member of an association affiliated with NUDIPU. This had the practical effect of disenfranchising any PWD who was not a member of a NUDIPU-affiliated group. While the litigation was pending, Parliament passed the National Council for Disability (Amendment) Act in 2013. This new legislation altered the electoral process by mandating the Electoral Commission to establish Electoral Committees for PWDs at all levels, from village to district. Under this reformed system, the district-level committees would converge nationally to elect the five parliamentary representatives for PWDs, thereby removing the dependency on NUDIPU.

Procedural history: The constitutional petitions were initially filed in 2010 but experienced significant delays. The 2011 general elections proceeded under the legal framework that the petitioners were challenging. During the pendency of the case, Parliament enacted the National Council for Disability (Amendment) Act 2013. The Constitutional Court finally delivered its judgment on the consolidated petitions on September 29, 2015. Following the decision, affected parties lodged an appeal with the Supreme Court of Uganda.

Summary: Kasozi & 3 Ors v Attorney General & 2 Ors is a landmark Ugandan decision on the intersection of disability rights, freedom of association, and electoral law. The Constitutional Court invalidated the 2011 electoral framework that disenfranchised PWDs by requiring them to be members of a specific NGO to vote in the PWD electoral college. While affirming that Parliament had unconstitutionally delegated its legislative duties, the Court found that the 2013 amendments to the National Council for Disability Act had corrected these constitutional defects. This case is significant in Africa for establishing a strong legal precedent against using mandatory associational requirements as a barrier to political participation for persons with disabilities and for reinforcing the principle that electoral rules for marginalized groups must be subject to rigorous legislative and constitutional review.

Conclusion: By a majority of four to one, the Constitutional Court granted the petitions. The Court found that Article 78(4) of the Constitution explicitly places the responsibility for prescribing electoral procedures for special interest groups on Parliament. By delegating this authority to a Minister, Parliament had improperly abdicated its constitutional duty. Consequently, any procedures created by the Minister under this delegated authority were deemed unconstitutional. The Court held that the 2011 electoral framework was unconstitutional. Specifically, Regulation 10, which mandated membership in NUDIPU-affiliated groups as a prerequisite for participation in the PWD electoral college, was a direct violation of several fundamental rights. It infringed upon the freedom of association (Article 29(1)(e)) by compelling PWDs to join an organization against their will. This barrier also disenfranchised non-members, violating their right to participate in public affairs (Article 38(1)) and their right to vote (Article 59(1)). The Court concluded that the National Council for Disability (Amendment) Act 2013 had effectively remedied the constitutional flaws of the previous system. By tasking the official Electoral Commission with forming inclusive electoral committees from the grassroots level up, the amendment removed the discriminatory NUDIPU membership requirement.

Legal Issue(s)

Freedom of association and assembly
Voters' Rights

Applicable Law(s): Constitution of Uganda, Parliamentary Elections Act, and the National Council for Disability Act.

Region: Africa

Country: Uganda

Language of Decision

English

Court: Constitutional Court

Election Type: Parliamentary

Date of decision: Sep 29, 2015

Geolocation

Latitude: 0.315833

Longitude: 32.579167

: Geolocation

Link: https://sheriahub.com/cases/ug/caselaw/kasozi-3-ors-v-attorney-general-2-ors-constitutional-petition-37-of-2010-2015-ugcc-2-29-september-2015.pdf

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Kasozi & 3 Ors v Attorney General & 2 Ors

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