Previous 10 / 18 Next

1. Obviously all the provisions of the Constitution must be read together in harmony. Doing so and acknowledging that Parliament has the authority under Article 79(2) of the Constitution to delegate some powers to a person or body of persons does not and cannot override a specific provision of the Constitution in Article 78(4) where the Constitution has specifically ordered Parliament to carry out a specific task. The specific provision will override the general provision in such circumstances. In any case looking at the wording of Article 79(2) it is clear that it is referring only to matters authorised under an Act of Parliament. It is not intended to refer to constitutional imperatives such as the one contained in Article 78(4). 1. If Parliament did not have the authority to delegate its duty in this regard then, definitely the Minister did not have the authority to delegate a duty or power he did not have. And even if the Minister had such powers he or she would have no authority to further delegate the same. Clearly regulation 3 of S1 No. 30 of 2001 is unconstitutional. 1. The other limb was that the impugned provisions were contrary to Article 29(1) (e) of the Constitution. The argument advanced by Mr Wandera Ogalo for the Petitioners was that political parties are not allowed to campaign for representatives among this special interest group contrary to their right to freely associate. We are not persuaded that the impugned provisions in relation to the army were contrary to Article 29(1) (e). If this Article is read together with Article 208 (2) of the Constitution that requires the Army to be, among other things, non-partisan it is clear that there is no leeway for partisan political activity within the army, whether for purposes of selecting candidates to vie for the seats in Parliament or any other activity within that institution. 1. Section 8(4) (d) provides, "the representatives of the workers shall be elected in a manner prescribed by regulations made by the Minister under section 100;" 1. For the reasons we have endeavoured to provide in relation to the provisions relating to the army we find that this particular provision is unconstitutional. Parliament was obliged to make the law itself. It had no authority to delegate it to another person, in this case the Minister. Both this provision and the regulations made by the Minister, SI No. 30 of 2001, as amended, by SI 6 of 2011, in relation to the elections of workers' representatives are clearly unconstitutional. It is the duty of Parliament, by law, to provide for the procedure for the election of representatives of workers. This duty cannot be delegated to any other person. What can be delegated are ancillary or subsidiary matters that assist in the achievement of the duty cast upon Parliament. It cannot delegate the duty itself. This provision contravenes and is inconsistent with Article 78(4) of the Constitution. 1. We now must consider whether or not the said provisions contravene Article 29(1) (e) of the Constitution. The substance of the impugned provision is to create an electoral college out of members of two federations of workers, NOTU and COFTU. Only workers affiliated with the said organisations can participate in the elections of representatives of workers. Non-unionised workers cannot participate in this process. The Constitution provides not for representation of only unionised workers but also nonunionised workers by the simple use of the word "workers". Workers who are not members of the said two federations are thus excluded from participating in this process of electing representatives for workers in Parliament. Such workers are disenfranchised contrary to Article 59(1) of the Constitution, read together with Article 78(1) (e) of the Constitution, rather than infringement of the right to associate under Article 29(1) (e) of the Constitution. Persons with Disabilities

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