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accounting bodies set up under the Constitution for consideration by Parliament. These two statutory organisations are set up by law and that law prescribes that they will be funded, inter alia, out of public monies from the Consolidated Fund. The organisations in accessing public funds will have to comply with the law and the Constitution. There is nothing in Article 155 that suggests that those two organisations' financial estimates cannot be caused to be laid before Parliament by the President. If the law passed by Parliament ordains that those statutory organisations shall be funded from the public purse their estimates are properly part and parcel of the estimates of expenditure of Government to be laid before Parliament for its consideration. Therefore we do not see how section 16 of Chapter 318 and section 18 of Chapter 319 contravene Article 155 of the Constitution. Constitutional Petition No.40 of 2010 1. We have decided to re-frame the issues in this petition in light of the amended petition and its prayers and the original answer to the petition as no amended answer to the amended petition was filed in this matter. 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 violated and were 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, rendering the whole electoral process for persons representing PWDs in Parliament unconstitutional 1. We have already found that the impugned provisions contravened Article 78(4) of the Constitution in Constitutional Petition No.37 of 2010 herein above. We now consider whether they contravene other provisions of the Constitution. The 2011 elections for persons with disabilities were conducted in accordance with the structures of a voluntary non-governmental organisation as directed by the Minister. This organisation is the third respondent. Clearly, in substance, the elections were restricted to members of this voluntary organisation. If one did not belong to this organisation, it was not possible to participate in this election. In effect people with disabilities that were not members of this organisation were unconstitutionally disenfranchised contrary to Article 59 of the Constitution. 1. The Constitution required Parliament to enact law that would provide the procedure for electing representatives of people with disabilities. The law in force in 2011 provided for a voluntary nongovernmental organisation to form the Electoral College and elect its members to represent people with disabilities. In doing so, non-members of NUDIPU who are people living with disabilities, had no opportunity to participate in this election unless they opted for membership of this private organisation. This would certainly infringe the right to freely associate under Article 29 (1) (e) of the Constitution. 1. 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 constituted one national Electoral college with representatives from the whole country, this was contrary to Article 24 and amounted to inhuman and degrading treatment for some of the intending candidates as they had 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

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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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