Previous 11 / 18 Next

1. Prior to the enactment of The National Council for Disability (Amendment) Act, Act 6 of 2013 the election of representatives of this particular special interest group were governed by section 8(4) (e) of the Act 17 of 2005, SI No. 30 of 2001 as amended by SI No. 6 of 2011. Initially it is these provisions that were challenged. We shall address that question first. 1. Section 8(4) (e) of the Parliamentary Elections Act provides, "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 regulation made by the Minister under section 100;" 1. Regulation 10 of SI 30 of 2001 stated, "the representative of persons with disabilities in Parliament shall be elected by an electoral college consisting of four persons elected from each district from the organised associations and groups under the structure of the National Union of Disabled People of Uganda in that district." 1. Parliament complied partly with its duty and partly delegated the rest of its duty to the Minister. It defined that elections will be by way of electoral colleges which it had authority to do. However, in delegating to the Minister the authority to determine composition of the Electoral College, Parliament exceeded its authority. 1. Guidance as to the extent of the duty of Parliament can be derived from Article 78(3) of the Constitution where the Constitution itself determines the procedure for the election of members of Parliament provided under Article 78(1) (a). It states, "the representatives referred to in clause (1) (a) of this Article shall be elected on the basis of universal adult suffrage and by secret ballot." 1. The Constitution provides for the procedure of elections of members of Parliament in the foregoing provision. It provides for who shall be entitled to vote at such an election (universal adult suffrage) and how such person shall vote (secret ballot). The procedure is clearly laid out. 1. In the impugned provision it is left to the Minister to determine who will vote or participate in the election of members of the Electoral College. This duty did not belong to the Minister. It was conferred upon Parliament and Parliament was to do so by law. It could not delegate the same. 1. We would therefore find that the impugned provisions were unconstitutional. 1. We now turn to whether Act 6 of 2013 is inconsistent with and contravenes Articles 29 (e); 38(1) and 78(4) of the Constitution. 1. Parliament promulgated Act 6 of 2013 which introduces "part VA' dealing with the election to Parliament of representatives for persons with disabilities. The provisions are compliant with the right to freely associate in relation to political parties. Elections shall be by way of electoral colleges which are clearly defined. The elections are managed by the Electoral Commission. We do not see how these provisions contravene Articles 29(1) (e); 38(1) or 78(4) of the Constitution in anyway. 1. Prior to the enactment of the National Youth Council (Amendment) Act, 2010, the election for representatives of the youth were conducted under the National Youth Council Act, Cap 319 as well as section 8(4) (c) of Act 17 of 2005. Section 8(4) (c) of the Parliamentary Elections Act is under attack. It states,

Select target paragraph3

● ● ●

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

Primary Documents

Kasozi & 3 Ors v Attorney General & 2 Ors.pdf
English
Download View

Election Judgments - IFES

Select target paragraph3

Kasozi & 3 Ors v Attorney General & 2 Ors

Primary Documents

Notifications