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(c) the representatives of the youth shall be elected in the manner prescribed by regulations made by the Minister under section 100 by district youth councils within the region of representation constituted into an electoral college in accordance with such regulations and the women youth representative shall be elected by a national youth conference in accordance with the regulations; (d) the representatives of the workers shall be elected in a manner prescribed by regulations made by the Minister under section 100; (e) the representatives of persons with disabilities shall be elected by an electoral college of representatives of such persons from each district in a manner prescribed by the regulations made by the Minister under section 100;" 1. It is the contention of the petitioners that these provisions, in relation to the election of representatives of the army, youth, workers, and persons with disabilities to Parliament, are in contravention of and inconsistent with the provisions of the Constitution under Articles 29(1) (e) and 78(4) thereof. It will be convenient to consider each special interest group separately. 1. In addition to the section 8 of the Parliamentary Elections Act, Act 17 of 2005, SI No. 30 of 2001 provides, "3. The representatives of the Uganda People's Defence Forces to Parliament shall be elected by the Uganda People's Defence Council in such manner and by such procedure as shall be determined by that Council." 1. The thrust of the argument for the petitioners is that neither the minister nor the Uganda People's Defence Council have the authority in law to make any such laws and regulations with regard to the election of the representatives of the army, as this power was conferred only on Parliament by the Constitution and Parliament could not delegate the same to the Minister. Neither could the Minister delegate that which he was not authorised to do. 1. The Attorney General has relied on Article 79 (2) of the Constitution to argue that Parliament was authorised when it makes law to delegate to other persons the authority to make law. We shall set out the provisions of the same starting with subsection (1). "(1) Subject to the provisions of this Constitution Parliament shall have the power to make laws on any matter for the peace, order, development and good governance of Uganda. (2) Except as provided in this Constitution, no person or body other than Parliament shall have power to make provisions having the force of law in Uganda except under the authority conferred by An Act of Parliament." 1. The wording in Article 78 (4) is very clear. To paraphrase the same, "parliament shall by law prescribe the procedure for elections of representatives of the army, youth, workers, and persons with disabilities.? This obligation is cast squarely upon Parliament by the Constitution. 1. Under Act 17 of 2005 in relation to the army, this obligation was delegated to the Minister under Section 8(4) (b). Did Parliament have the authority to delegate what had been delegated to it? We agree with the petitioners that Parliament did not have this authority. Its duty under the Constitution was to enact the relevant law that would provide the procedure of election of the representatives of the army. In constitutional and administrative law it is a generally accepted principle of interpretation that one cannot delegate a duty that was cast upon one to perform. This is what is often referred to as the principle of delegata potestas non potest delegari (Latin) meaning no delegated powers can be further delegated.

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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.pdf
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Kasozi & 3 Ors v Attorney General & 2 Ors

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