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(c) That in respect of the army the minister then made regulations delegating the delegated authority to prescribe the procedure to the army council. (d) That the army council has never made known to Uganda the procedure by which army representatives are elected. (e) That in respect of representatives of workers, the minister did not prescribe the procedure but instead invoked the constitution of the Federation of Trade Union Organisations. (f) That in respect of person with disabilities the minister prescribed the procedure to elect members of Parliament in one sentence. The "procedure' does not amount to a procedure intended by Article 78 (4) of the Constitution. (g) In respect of the youth no procedure exists since provision establishing district youth councils which form the Electoral College were declared unconstitutional. The National Youth Council (Amendment) Act 2010 and the National Women's Council (Amendment) Act 2010 are themselves unconstitutional and their term had come to an end. (h) The national budget of 2010/11 contains provision for National Youth Councils which are voluntary organisations and as such not expenditure envisaged by Article 155(1) of the Constitution. (i) Whereas the constitution provides for workers representatives, the majority of workers have no voice in determining who will represent them. (j) Both Parliament and the minister have not prescribed a procedure as required by the Constitution." 1. The Petitioner seeks several declarations relating to the laws which are inconsistent with and contravene the Constitution and specifically seeks the following orders. "(a) That parliament enacts a law as required by Article 78(4) of the Constitution. (b) A permanent injunction do issue against holding elections in respect of the special interest groups under the present legal framework." Answer to Petition No.37 of 2010 1. The respondent denied the allegations and stated that neither of the cited provisions of the law nor the actions that have taken place were inconsistent with the Constitution or contravened any provisions of the Constitution. All the provisions that the petitioner had impugned were consistent with the Constitution. 1. Secondly the respondent objected to the amended petition in particular on the following grounds. "(a) The Petition is overtaken by events following the conduct and conclusion of the 2011 elections, specifically in respect of paragraphs 1(e), 3(d) and 4(b) of the Petition. (b) The Petition is overtaken by events, specifically in respect of Workers and Persons with Disabilities Special Interest Groups, following the subsequent enactment of: i. National Council for Disabilities (Amendment) Act, 2013. ii. Statutory Instrument No. 6/2011

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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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