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1. Secondly these objections would not have arisen had this court met its constitutional responsibility, heard and determined the petitions prior to the holding of the 2011 elections. It was the duty of this court imposed by the Constitution under Article 137(7) to grant priority to the hearing of constitutional petitions in preference to all other matters before the Court of Appeal. It was the failure of this court that allowed further developments to take place while the petitioners' actions remained unheard. We cannot fault the petitioners for taking into account the developments that occurred since they filed their petitions so that the same are considered together with the original complaint. 1. The basic complaint of the petitioners has not changed in character and basically remains the same, in spite of the holding of 2011 elections, and the holding of the forthcoming elections in 2016. Their complaint was that the Parliamentary Elections Act, in relation to the Special Interest Groups, was unconstitutional. The fact that 2011 elections took place does not "overtake' the petitioner's complaint against the law under which it was held. It makes it more urgent to resolve that question, notwithstanding the elections that took place. 1. If new laws have come into force since the filing of the petitions in question, this does not render the petitions incompetent, irrelevant or untenable per se. The petitioners are quite entitled and it is logical in our view that they consider their petitions in light of the new legislation and if it addresses their concerns they will say so or the court will find so. If the new laws do not address their complaint that is a matter rightly in issue before their complaint is determined. 1. We accordingly reject all objections raised as preliminary points of law and shall proceed to consider the amended petitions. Constitutional Petition No. 37 of 2010 1. It is contended in CP No. 37 of 2010 that sections 8 (4) (b), (c), (d) and (e) of the Parliamentary Elections Act; SI No. 31 as amended by SI No. 6 of 2011; National Council for Disability (Amendment) Act 2013 and the National Youth Council (Amendment) Act are inconsistent with and contravene Article 78 (4) of the Constitution. It is further contended that the Parliamentary Elections (Special Interest Groups) Regulations S1 31 of 2001 as amended by SI 6 of 2011 is inconsistent with Articles 29(d), (e); 38(1); 61(a); 67(1) and 1(4) of the Constitution. It was further contended that sections 18 to 20 of the National Youth Council Act are inconsistent with and contravene Article 155 of the Constitution. 1. The 2011 general elections in respect of the workers, youth and persons with disabilities as special interest groups are contended to be inconsistent with and to have contravened Article 29(d) and (e) of the Constitution. 1. The National Council for Disability (Amendment) Act 2013 and the National Youth Council (Amendment) Act 2010 are challenged for being inconsistent with Articles 29(e) and 38(1) of the Constitution. 1. The substance of the petitioner's complaint is set out in paragraph 2 of the petition and we shall reproduce the same: "(a) That the constitution requires parliament to enact law prescribing the procedure for elections of parliamentary representatives for the army, youth, workers and persons with disabilities. (b) That instead of prescribing the procedure parliament made law delegating its authority to the minister.

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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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