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1. It is further contended that the impugned provisions contravene and or are inconsistent with Article 61(1) (e) which provides, "(1) The Electoral Commission shall have the following functions" (a) (c) (e) to compile, maintain, revise, and update the voters register;" 1. What this provision requires the Electoral Commission to do is to maintain a voters' register and not voters' registers as earlier stated. A voter, whether under universal adult suffrage, or under any other mechanism or procedure set up by Parliament may be registered on that voters' register. There is no requirement for separate registers for each special interest group though of course there are qualifications necessary to belong to each special interest group which are the sine qua non for participation of such persons in the elections of representatives for each special interest group. This information would presumably have to be captured in the voters register maintained by the Electoral Commission under this Article. 1. It is our view therefore, that Article 61(e) of the Constitution is not infringed by the impugned provisions. 1. We do not see how the independence of the Electoral Commission under Article 62 was in issue in regard to impugned provisions. 1. Turning to Article 63, as already noted above, read as a whole, deals with constituencies for election of directly elected members of Parliament under Article 78(1) (a) of the Constitution and is not applicable to "constituencies' for special interest groups. This can be inferred or gathered from its provisions or content. It is not applicable to special interest groups and could not have been contravened. Whether section 8(4)(e) of the Parliamentary Elections Act, 2005 and Regulation 10 of the Parliamentary Elections (Special Interest Groups) Regulations 2001 as used to hold elections in 2011 and section 31A of the National Council for Disability Act infringe upon the Articles 3(a), (b), (c) & (e); 4; 5; 12 and 29 of the United Nations Convention on the Rights of Persons with Disabilities, 2006 which Uganda has ratified and is bound by its provisions 1. We are of the view that this issue is not a matter calling for constitutional interpretation of the Constitution of Uganda and we need not consider the same as it does not arise within the terms of Article137 of the Constitution. In any case, we have already considered and determined whether or not these provisions contravene the Constitution of Uganda. That is the extent of our mandate or jurisdiction. Whether a permanent injunction should issue directing the first and second respondents not to conduct elections or engage in any electoral process for PWDs under the provisions of the National Council for Disability Act, 2003 1. No case has been established upon which a permanent injunction could issue against the respondents in relation to the holding of the elections of representatives for people living with disabilities in relation to the law now in force.

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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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