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1. All the above three petitions were filed in 2010 challenging the constitutionality of different aspects of the law relating to the election of special interest groups to Parliament. Unfortunately these petitions were not heard until the latter part of 2015. In the meantime one national parliamentary election had taken place in 2011 under the challenged law and another election is about to take place in early 2016. The failure by this court to hear and dispose of these matters in time as required by the Constitution, including setting aside every other matter to dispose of pending constitutional matters is a regrettable lapse which is simply not acceptable. 1. Prior to the hearing of the said petitions the court ordered that the said petitions be heard together as the matters in issue were basically challenging the constitutionality of election law in relation to special interest groups and it was convenient that the same be heard together. Parties were allowed to file amended petitions to take account of later developments from the time of the filing of the petitions to date which impacted the petitioners' complaints while these petitions were in limbo. All the petitioners filed amended petitions and the respondents responded in respect of CP No.37 of 2010. 1. All petitions including the amended petitions and the answers to the petition were supported with affidavits. Preliminary Points of law 1. We shall start by considering and resolving the preliminary points of law raised by the respondents before we consider the main petitions. 1. The respondents object, in their answer to CP No. 37 of 2010, as a preliminary point of law, that the Petition is overtaken by events following the conduct and conclusion of the 2011 elections, and in particular, the claim by the Petitioner that the 2011 general elections in respect of the workers, youth, persons with disabilities were inconsistent with and contravened Article 29(d) and (e) of the Constitution; the grant of a declaration that the holding of the 2011 general election in respect of the youth, workers, and persons with disabilities contravened Articles 29 and 35(1) of the Constitution; and that a permanent injunction does issue against holding elections in respect of the special interest groups under the present legal framework. 1. The respondents further object that the Petition is overtaken by events, specifically in respect of the Workers and Persons with Disabilities special Interest Groups, following the enactment of the National Council for Disabilities (Amendment) Act, 2013 and Statutory Instrument No. 6 of 2011. 1. The respondents further object to any and all amendments to the Petition in relation to: (i) amendments challenging provisions of the amended statutes not existing at the filing of this petition. (ii) amendments challenging the manner in which the 2011 Special Interest Groups Elections were conducted- which elections had not been conducted at the time of filing this petition; and (iii) amendments purporting to originate new causes of action following the filing of this Petition. 1. The foregoing preliminary points were raised by the answer to the amended petition No. 37 of 2010. Much as no amended answers were filed in respect of the CP no.40 and 48 of 2010 those petitions would be affected as the subject matter of the said objections would arise in the said petitions as well. We were addressed by all counsel for the respondents and for the petitioners on the said objections. 1. It is pertinent to observe that firstly, the amendments in question were allowed by the court itself. These amendments having been allowed by the court itself, we cannot now sit on appeal on the earlier decision that allowed the amendments to be made.

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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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