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to be elected by all members of the Electoral College referred to in the Regulations of the Parliamentary Elections (Special Interest Groups), drawn from each district from organised associations and groups under the structures of NUDIPU and those contestants who could not afford were disadvantaged. Section 31A(1) read together with Schedule A of the National Council for Disability Act (as amended) has not cured this constitutional anomaly. (d) Regulation 10 in effect forced any PWD who in 2011 wished to be a member of the Electoral college referred to hereinabove to be a member of an association or group that is affiliated to the NUDIPU, which was contrary to and against Article 29(1)(e) of the Constitution and excluding PWDs who were not members of association or groups affiliated to the NUDIPU violated their right to vote and be voted and was against Articles 50(1) and 38(1) of the Constitution. (e) In 2011, NUDIPU neither operated in all nor had affiliates in all districts in Uganda, which excluded PWDS in districts not covered by NUDIPU or its affiliates, thereby infringing on the rights to vote and participate in the affairs of Government under Articles 38(1) and 59(1) of the Constitution of PWDs outside the covered districts. (f) The election of members of Parliament through an Electoral College not based on demarcated constituencies but on the basis of the structures of the NUDIPU and its affiliates is contrary to and against the provisions of Article 63 of the Constitution. (g) The conduct of elections through an Electoral College which was convened in Kampala required that the PWDs be transported to Kampala which not only excluded those who were unable to travel, but greatly inconvenienced those who travelled owing to their disabilities thereby infringing on their right to respect and human dignity guaranteed by Article 35(1) of the Constitution. (h) Placing election matters in the hands of a non-governmental organisation which is not a statutory body but functions under its own constitution as was done in 2011 is an abrogation by Government of its Article59(3) constitutional obligation to take all necessary measures to ensure that all citizens qualified to vote register and exercise their right to vote." Answer to CP No. 40 of 2010 1. The Attorney General and the Electoral Commission filed a joint answer to the original petition which maintained that none of the impugned provisions are unconstitutional. They further denied contravention of the United Nations Convention on the Rights of People with Disabilities. They prayed that this petition should be dismissed with costs. 1. Likewise the third respondent maintained the same stance in its answer to the petition. It contended that the impugned provisions were not at all unconstitutional and prayed that this petition be dismissed with costs. Constitutional Petition No. 48 of 2010 1. The two petitioners have 3 basic complaints in their petition. Firstly that the participation of workers representatives in Parliament, and intending workers' representatives in partisan politics, is inconsistent with and contravenes Articles 29(1) (e) and 40(3) of the Constitution in so far as they cease to represent workers and their interests. Secondly it is contended that the Parliamentary Elections (Special Interest Groups) Regulations 2001 as amended by SI No. 6 of 2011 are inconsistent and contravene Articles 29 and 40(3) of the Constitution in so far as representation of workers in Parliament is restricted only to two trade union federations. Lastly that the act of workers representatives in Parliament holding salaried and

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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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