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It is not applicable to special interest groups and could not have been contravened. Whether section 31A of the National Council for Disability Act, 2003 (as amended) read together with Schedule A of the same Act is in contravention of Articles 20(2); 21(1), (2) & (3); 24; 29(1) (e); 35(1) and (2); 45; 59(1); 61; 62 and 63(1), (3) & (4) of the Constitution 1. We shall start by considering whether the said impugned provisions contravene or are inconsistent with Articles 21(1), (2) & (3); 24, 29(1) (e), 35 (1) and (2), and 45 before considering Article 20 (2) for the reason already articulated that Article 20(2) is not applied singly. It must be coupled with an existing right in Chapter 4 of the Constitution. 1. Turning to whether the impugned provisions contravene Article 21(1), (2) & (3), we wish to repeat that Article 21(2) and (3) deal with discrimination. It is contended that different procedures were prescribed for other interest groups like youth and women and this was discriminatory. It was open to Parliament to prescribe different procedures for each special interest groups as long as those procedures conform to the Constitution. The mere fact that procedures for each group may be different in certain respects is not necessarily evidence of discrimination. This depends on other considerations possibly including the population of the special interest group in question. 1. It has been contended that the impugned provisions, in so far as they continue to constitute one national Electoral college with representatives from the whole country, is contrary to Article 24 and amounts to inhuman and degrading treatment for some of the intending candidates as they would have to traverse the whole country to campaign. We do not agree. It may be inconvenient or expensive for some intending candidates. This does not render the same inhuman and degrading treatment. It also does not infringe the right to respect and human dignity for disabled people provided for under Article 35(1) and (2) of the Constitution. 1. With regard to the claim that the impugned provisions contravene Article 29(1) (e) of the Constitution, it is contended that since there are people living with disabilities who may not wish to participate in the National Council for Disability and it would be their right not to associate with the same, this right would be violated as they would not be able to participate in the elections. 1. The National Council for Disability Act creates a statutory body which is open to all disabled people. If one wishes to participate in elections for persons with disabilities one has to comply with what is set out in the law which Parliament has set in place for the purposes of electing representatives of people living with disabilities. This law does not contravene Article 29(1) (e) merely because an individual chooses to exercise his / her right not to participate in such statutory organisation. For as long as he / she is not compelled to participate, Article 29(1) (e) is not infringed. The law is compliant with Article 29 (1) (e) for as long it does not compel the individual to participate. 1. Where the Parliament has determined that the structures of such statutory organisation provide the most practical avenue for choosing the Electoral College that will elect the representatives of the people with disabilities, it is important that such structures be open to the voluntary participation of all people with disabilities. Once the structures are open to all members of the special interest group, there can be no question of disenfranchisement under Article 59 of the Constitution. 1. With regard to whether the impugned provisions contravene or are inconsistent with Article 45, we are satisfied that they do not. There is no right arising under Article 45 which is alleged to have been infringed or contravened by the impugned provisions. Article 45 cannot come into play in the situation before us.

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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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