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The Constitutional Court of Uganda is compromising the Rule of Law: Making a Case for the Liberalizing of Constitutional Interpretation in Uganda.

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The Constitutional Court of Uganda is compromising the rule of law: Making a case for the liberalizing of Constitutional interpretation in Uganda.

ISINGOMA PETER

LLM (MUK), LBB (MUK), PGD LP (LDC)

© 2021

Uganda Forum against Corrupt Entities.

“We’ve seen over time that countries that have the best economic growth are those that have good governance, and good governance comes from freedom of communication. It comes from ending corruption. It comes from a populace that can go online and say, ‘This politician is corrupt, this administrator, or this public official is corrupt.’ Ramez Naam

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INTERPRETATION refers to the process of discovering the meaning and scope of a document or statute or provision of the law. Justice Remmy Kasule defined Interpretation of the Constitution to mean the ascertaining of the meaning of specific Constitutional provisions and how they should be applied in a particular context[1]. Interpretation of the Constitution also arises if a given aspect of a case that is the subject of litigation in a court of law or quasi tribunal or body is not explicitly defined by the law or where the definition is not clear and its Constitutionality has not been determined[2].

Interpretation is important in order to understand the meaning, scope and intention of a provision of either the Law or some other document (especially a contract). Over the centuries courts have developed different rules of statutory interpretation and aids to interpretation to help courts interpret legislation or contracts. These rules guide the interpreter in discovering the meaning of the words used by the drafts man. The rules of statutory interpretation include the literal rule, the purposive approach, the contextual rule and the mischief rule.

The rules of statutory interpretation were analyzed by Professor John Willis in his influential article Statutory Interpretation in a Nutshel[3]. Regarding the uses of the rules of interpretation he suggested that:

“..A court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another…”

Am in agreement with the analysis by Professor Wallis and in this article a detailed explanation of the rules of statutory interpretation is not necessary, it is assumed that the reader has basic understanding of the rules and how they are utilized by courts of Law. As stated by Professor John Wallis, the court will choose whichever rule is appropriate depending on the circumstances of the case. However it has been suggested that whenever the words are clear and unambiguous the courts must enforce the words regards less of how much they may distaste the outcome. This rule has not been met with universal acceptance because strict adherence to it will usually cause injustice yet the overriding duty of court is to do justice. A contrast of the views of Lord Diplock and Lord Scarman in Duport Steels Ltd v SIRS (1980) HL[4] with those of Lord Browne-Wilkinson and Lord Griffiths in Pepper (Inspector of Taxes) v Hart [1993][5] is instructive as to the limits to courts power of interpretation.

Duport Steels Ltd v SIRS (1980) HL

Lord Diplock;

‘Where the meaning of the statutory words is plain and unambiguous, it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient or even unjust or immoral’.  See: Charles Onyango Obbo & Anor v. Attorney-General Constitutional Petition no. 15 of 1997 [6]

Lord Scarman;

‘In the field of statute law the judge must be obedient to the will of Parliament…Parliament makes…the law: the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires…Unpalatable statute law may not be disregarded or rejected, merely because it is unpalatable.’

‘If Parliament says one thing but means another, it is not, under the historic principles of the common law, for the courts to correct it…We are to be governed not by Parliament’s intentions but by Parliament’s enactments’ Pepper (Inspector of Taxes) v Hart [1993]

Lord Browne-Wilkinson;

“The purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature”.

Lord Griffiths;

“The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”  See also: Susan Kigula & 416 Others V Attorney General [7]

However it should be noted here that the purposive approach has since gained dominance over the literal rule and others rules of statutory interpretation because of its flexibility. Therefore because of current trends Lord Griffiths’ approach should be taken to have been superior to that of the other law Lords since the courts have accepted it as the correct position of the law. The approach put forward by Lord Griffiths is superior because, it allows for judicial discretion to consider all the surrounding circumstances in arriving at the meaning of a provision. It allows judges to consider the purpose of the document, the circumstance of the drafts man and correspondences by the draftsman. The rule has the advantage of anticipating and utilizing both the literal rule and the contextual rule. The approach involves not so much a choice between alternative rules but as a progressive analysis in which the judge[8]:

  • First considers the ordinary meaning of the words in the general context of the statute,
  • Then takes a broad view of what constitutes the “context”, and then
  • Considers other possibilities where the ordinary meaning leads to an absurd result.

The importance of the purposive approach can be best summarized in the words of Lord Cooke in R v SOS for the Environment ex parte Spath Holme (2000) HL[9]

“While today the purposive principle of interpretation is the governing one if available, other established canons may come into play. ………… such as that Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation; that, when it does so, a restrictive approach to interpretation is legitimate; and that, in the absence of clear language Parliament is presumed not to take away property rights without compensation.”

In Uganda similar statements were made by the Supreme Court in Tinyefunza v Attorney General[10]. It has been judicially accepted that these rules of statutory interpretation apply to interpretation of the Constitution except that they must be deployed in conjunction with other principles specific to Constitutional interpretation that have been put in place by courts of law. In Uganda these principles were discussed by the Constitutional Court in Susan Kigula & 416 Others V Attorney General Constitutional Petition (2003)[11], Per G.M. Okello JA

  1. It is now widely accepted that the principles which govern the construction of statutes also apply to the interpretation of Constitutional provisions. The widest construction possible, in its context, should be given according to the ordinary meaning of the words used. (The Republic vs. EL Manu (1969)[12]
  2. The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other (Paul K. Ssemogerere and 2 others vs. A.G (2002.)[13]
  3. All provisions bearing on a particular issue should be considered together to give effect to the purpose of the instrument (South Dakota vs. North Carolina, (1940)[14]. Tinyefuza vs. Attorney General[15] Constitutional Petition No. 1 of 1996.
  4. A Constitution and in particular that part of it which protects and entrenches Fundamental Rights and Freedoms are to be given a generous and purposive interpretation to realise the full benefit of the right guaranteed.
  5. In determining Constitutionality both purpose and effect are relevant [Attorney General vs. Salvatori Abuki (1998)[16]
  6. Article 126(1) of the Constitution of the Republic of Uganda enjoins courts in this country to exercise judicial power in conformity with law and with the values, norms and aspirations of the people (emphasis added.)

THE CONSTITUTIONAL COURT OF UGANDA

Under Article 137 of the Constitution of the Republic of Uganda, the power to interpret the Constitution is vested in the Constitutional Court which is the Court of Appeal sitting with a quorum of 5 members to constitute the Constitutional Court. The Constitution requires that where an issue of interpretation of the Constitution arises a reference or an application should be made to the Constitutional court under article 137(3) of the Constitution to interpret the Constitution[17]. This article effectively stripped other courts (High Court, Magistrates Courts, Court of Appeal and Supreme Court) of the ability or power to interpret the Constitution such that all issues of Constitutional interpretation in Uganda have to be adjudicated by the Constitutional Court. However Article 50 reserved the power of enforcement of fundamental rights to the High Court[18], though both the Constitutional Court and the Supreme Court may exercise the power in their original and appellate jurisdiction respectively.

The case of Mbabali Jude V Edward Kiwanuka Sekandi Constitutional Petition No. 0028 of 2012 demonstrates the Constitutional courts’ exclusive interpretation jurisdiction. In this case the Constitutional Court held that the case as framed was a matter of enforcement of the law since it did not disclose any issue of Constitutional interpretation because on the facts the petition did not disclose any controversy requiring interpretation of the Constitution by the court. The court concluded that the Constitutional Court lacked jurisdiction in the matter. In Mbabali Jude V Edward Kiwanuka Sekandi (2012), Justice Remmy Kasule JA/JCC, explained the jurisdiction of the Constitutional Court.

“…the Constitutional Court adjudicates matters requiring interpretation of the Constitution, and not necessarily, enforcement of the Constitution, except where upon determination of the issue of interpretation of the Constitution, the said court considers, on its own, that there is need to grant additional redress. In such a case, the Constitutional Court may grant other redress in addition to having interpreted the Constitution or it may refer the matter to the High Court to investigate and determine the appropriate redress: See: Article 137(4) (a) and (b) of the Constitution”[19]

A reproduction of the dictum by Justice Remmy Kasule JA/JCC in Mbabali Jude V Edward Kiwanuka Sekandi[20] is necessary to better understand the Constitution interpretation jurisdiction of the Constitutional Court and the enforcement powers of the High court.

“There is however, a difference between the Constitutional Court interpreting a provision of the Constitution as stated above and any other court of law applying a particular provision of the Constitution to a particular set of facts of a case that is being determined by that court. To apply the Constitution or its provision, in my considered view, is for the court concerned, to operate or effect a particular provision of the Constitution to the facts of a particular case that court is determining. It is the process by which that court makes use of the Constitution. In such a case the dispute before the court is capable of being resolved without the Constitution first being interpreted by the Constitutional Court. A competent court determining a cause is at liberty to find and pronounce itself as to whether or not, in its finding, a particular set of facts of the case, are contrary to or are in compliance with the Constitution. By doing so, such a court is not interpreting the Constitution. The said court is just applying the Constitution to the facts of the case before the Court. Likewise, one seeking enforcement of a right or freedom guaranteed under the Constitution by claiming redress for its infringement may apply to any other competent court for such redress under Article 50 of the Constitution. Such a one does not necessarily apply to the Constitutional court because, in order to get such redress there is no need for the Constitutional Court to first interpret the Constitution. All that is needed is the court adjudicating the matter to apply the Constitution to the proved set of facts and/or law and proceed to grant or not to grant the redress sought[21].

Justice Remmy Kasule JA/JCC makes it clear that enforcement “is the process by which that court makes use of the Constitution” He posits that it is possible for a court to determine that a particular set of facts of the case, are contrary to or are in compliance with the Constitution in circumstances were an earlier case has decided the ambit of the specific provision of the Constitution. With due respect to his Lordship, how do you understand the extent and scope of a provision of the Constitution without interpreting it. Let us for one moment assume that the Constitutional Court has decided the extent and scope of article 28 of the Constitution. Does this mean that there are no more penumbras (simply aspects or sides or perspectives) of this article that are yet to be discovered it? Does it mean that new facts will not arise that do not fall squarely within the interpretation given by the court in a particular previous case. Taking this view that what the Constitutional Court has not considered does not exist stagnates the law, abridges the rule of law, harms the prestige of the courts and lends a hand to abuse of the rights of citizens.

I think that what his lordship means is that where facts fall outside an interpretation handed down by the Constitutional court, the tribunal which lacks the power to interpret the Constitution has to make a reference to the CC but where the facts fall within an interpretation of the Constitution made by the CC, the lower court can enforce the Constitution as interpreted by the CC. The Constitutional Court in Attorney General V Osotraco Ltd[22] held that in spite of the fact that the High Court has no jurisdiction to interpret the Constitution, it has jurisdiction to enforce provisions of the Constitution under article 50 of the Constitution[23] and that article 273 empowers all courts to modify existing laws that are incompatible with the Constitution without necessarily having to refer all such cases to the Constitutional court for interpretation. The court explained that article 273 enables the court to expedite justice by construing unjust and archaic laws through bringing them in conformity with the Constitution instead of holding that they do not exist and are therefore void.

Regarding courts’ enforcement jurisdiction Remmy Kasule JA/JCC stated,

“A competent court determining a cause is at liberty to find and pronounce itself as to whether or not, in its finding, a particular set of facts of the case, are contrary to or are in compliance with the Constitution. By doing so, such a court is not interpreting the Constitution. The said court is just applying the Constitution to the facts of the case before the Court. Likewise, one seeking enforcement of a right or freedom guaranteed under the Constitution by claiming redress for its infringement may apply 8 to any other competent court for such redress under Article 50 of the Constitution” [24]

My, question is, how do you enforce the provisions of a law without understanding the meaning of the provision of the law or without knowing the scope and limitations of the Constitutional provisions in issue. “How does the court determine the meaning of the Constitution to pronounce its self as to whether a particular set of facts are contrary to or are in compliance with the Constitution”? Justice Kasule must presuppose that the meaning of the Constitution has been pronounced by the CC and assume that where it has not been pronounced a reference to the Constitutional Court has been made[25].

In understanding the Constitution one has to ask himself

  • What does a particular provision of the Constitution in issue mean?
  •  What does a particular provision of a statute mean or what are the implications of the action(s) in issue and
  • Whether that provision of the statute or the action(s) complies with the meaning of the Constitution.

Let us consider the following provision.

“The police may in investigation of a criminal offense utilize any such methods and tactics as they deem fit”

Obviously literally;

  • The provisions means police can use any method or tactic of investigation that the police believe will produce results.
  • Contextually the police are not above the law and thus are bound to observe it and therefore the provision contextually means lawful tactics or methods, thus; “the police may in investigation of a criminal offense utilize any lawful tactics or methods as they deem fit”.
  • In additionally police cannot be allowed to whatever they whim. They can only do what they honestly believe will produce results not any scheme that they think of how ever arbitrary and crazy[26].
  • Also contextually citizens have rights to privacy, rights to property, rights to protection against unlawful search/seizures and protection of personal liberty and Court would be a bridging its Constitutional duty to protect personal freedoms if court let police use investigative tactics or methods that violate these rights

Therefore taking into consideration the above context, the provision when subject to court’s interpretation means that;

“Police may use any lawful method or tactic that they honestly believe will produce results during investigation without violating the personal liberties of citizens”.

Without interpreting this provision, court would not be able to understand its actual meaning and therefore would not be able to enforce it, in the true sense of the word “enforcement” especially within its Constitutional limits.

The Constitution is the yard stick for all legislation and therefore there a need to ensure that all legislation and executive action complies with it because under article 2(1) it provides that any act or provision that is inconsistent with the Constitution is null and void to the extent of the inconsistency[27]. Article 137 creates a system where courts are asked to enforce individual rights without determining the extent of the Constitutional right in issue or in the alternative go through a lengthy, time consuming and expensive process to get an interpretation from the CC. Let us take the example of Art 28[28] which provides for a right to a fair hearing. This Article specifies many aspects of this right but the Constitution does not preclude other rights that are not specifically mentioned in the Constitution[29] because the Constitution itself recognizes that expressly protected rights do not preclude other rights. This therefore means that there are no boundaries on the extent of the right to a fair hearing, whether as specifically provided for under Article 28 or as reserved by the Constitution. For example;

  • It could include a right to have a lawyer present during police questioning[30].
  • It could include the right to be provided assistance of counsel at the expense of the state where you are unable to afford one[31].
  • It could include to a right to be released immediately where police have no reasonable cause to hold you[32].
  • It could bar admission of illegally obtained evidence[33].
  • It could include a right to adequate compensation when you are acquitted after many years on remand or many years in prison serving a sentence based on a wrong conviction and so on.

It should be noted that none of the above possible facets of article 28 have been judicially considered by the Constitutional court or any other court in Uganda for that matter. Under article 50 the High court would be unable to enforce article 28 in this line of thinking because it would amount to interpretation of the Constitution yet the High court (Per Justice Kasule interpreting article 137)[34] has no interpretation jurisdiction in respect of the Constitution. It is however interesting to note that the High Court has unlimited original jurisdiction in criminal and civil matters. It can pass any sentence prescribed by the law and has no pecuniary limits to its original jurisdiction. The high court can sentence me to death and adjudicate civil dispute involving more than a trillion Uganda shillings but it cannot decide whether evidence obtained in violation of my rights is admissible in court under article 28. This is a very sad and unnecessary outcome; it is unreasonable fetter to the unlimited jurisdiction of the HC and an illegitimate restriction to the right to a fair hearing. If the High Court can be trusted with the life or death of an individual it can be trusted to determine what Constitutional rights that individual has. In any society, of all the rights the life to life is the most basic and fundamental of all rights, you need no freedom of expression or rights to property or personal liberty or even a fair hearing when you are dead.

Justice Kasule[35] actually means that in instances where the controversy in questions relates to a right that is specifically defined like a right to have access to the police file[36] or presumption of innocence[37] enforcement is straight forward but what about rights whose limits have not been defined or activities whose Constitutionality has not been tested. How do you enforce these without interpretation the Constitution?

Interpretation is the purview of the judiciary and therefore falls within the right to affair hearing. In the context of fair hearing it appliers in the sense that a person is entitled to the benefit of every Constitutional protection whether in a criminal or a civil trial[38].

WHY THE CONSTITUTIONAL COURT

I do not have enough literature to ascertain the reason why the constituent assembly put in place the Constitutional Court. The intention of the farmers of the Constitution could have been to ensure a consistent approach to Constitutional interpretation, they could have mistrusted the lower courts (after all some grade one Magistrates were not degree graduates at the time) or they could have desired a small group of political appointments with “proven skills and experience” that could easily be influenced be the ones to interpret the Constitution rather than a large number of judicial officers with a plurality of ideas of what the Constitution means. Regardless of the intention of the framers all these could have been achieved without stripping other courts of the power to breathe life into the Constitution through interpretation. It is obviously preferable in the point of view of an advocate for the rule of law to have a diverse number of people weighing in as to what the Constitution means especially in underdeveloped countries where the judiciary is manned by cadres loyal to the ruling political party. In a situation where you have a large number of people weighing in on the meaning of the Constitution there is a high probability of having a “rogue” judicial officer with sound knowledge of the law and a passion for justice making an apolitically correct judgment which upsets the political spectrum than in circumstances where there is a small body of carefully selected decision makers.

WHAT IS WRONG WITH THE CONSTITUTIONAL COURT

The effect of article 137 has been that when a Constitutional issue arises during a trial in the lower courts or even in the higher courts not sitting as a Constitutional Court that court has to make a reference to the Constitutional Court to interpret the provision of the Constitution in issue versus the legislation or action in issue[39].

For example take a case in the Magistrate’s Court where an issue of Constitutional interpretation arises. A is charged with murder and he argues that the evidence against him was obtained illegally in violation of his Constitutional rights to liberty and privacy and that this evidence is inadmissible under Art 28 as an abuse of the court process[40]. The Magistrates’ Court because it has no power to interpret the Constitution, must make a reference to the Constitutional court and stay its proceedings until the decision of the Constitutional Court on the Constitutional issue. Further assuming that A is on remand, it means that A has to wait for between 3-7 years for his Constitutional petition to be heard in order for his trial to proceed. This can force any reasonable litigant on remand to forego the Constitutional issue in the case and take his or her chances in the criminal trial instead of remaining on remand for 3-7 years. To make our point let us use six Constitutional petitions to determine the median time it takes for the Constitutional Court to determine a reference made to it.

  1. Susan Kigula v AG  06 OF 2003                 10 June 2005              2 years[41]
  2. Kiiza Besigye V AG 0013 OF 2009              29 January 2016         7 years[42]
  3. Satya Vs AG 0036 OF 2012              9 February 2016);       6 years[43]
  4. Ssajjabi & Anor V AG 35 OF 2013                  24 March 2016);         3 years[44]
  5. Shar Ltd V M.K. Finance 26 OF 2014                 14 April 2016);            2 years[45]
  6. Akampumuza V MUBS 275 OF 2015               26 April 2016);            1 year[46]

Considering the above sample of cases heard and decided by the Constitutional Court, we can conclude that it takes between 1-7 years to conclude a matter filed in the court and a median of 3.5 years to decide an application to made to the Constitutional Court.

On the other hand the Magistrate may choose to treat this as an issue of enforcement of the Constitution rather than an issue of interpretation and proceed to decide to apply an interpretation of the Constitution rendered by the CC holding that illegally obtained evidence[47] contravenes article 28. However this route presupposes that the Constitution court has considered the argument put forward by A in a previous case and decided the scope of article 28 regarding illegally obtained evidence.

The problem is that Uganda is a third world country with many defendants unable to afford a lawyer to argue such a complicated point of law or even have counsel who can ably ascertain and argue such a point. It is also country where indigent defendants have no right to a state provided lawyer (except for capital offenders) and a country where the judiciary has developed negligible revolutionary jurisprudence in thirty years of existence. It is therefore unlikely that such a point could have been considered by the Cc or argued in any case. It is even more unlikely that the cadre judges manning the judiciary would have allowed such an application of article 28 to succeed given the requirements it would impose on police and the efficiency that police would have to achieve to comply with such a requirement.

Art 137 a bridges Article 28 because it denies a person the due process of the law by denying the trial court the right to give him the benefit of Constitutional protections, by causing unnecessary delays and complexity through requiring a Constitutional reference, to the CC thereby coercing some litigants into not raising Constitutional issues while others raise them as a delay tactic in abuse of the court process.

Every citizen at any level of adjudication has a right to the benefit of the protection provided by the Constitution but the burden created by the CC in terms of time, money and complexity unduly burdens the citizen’s right to have benefit of these protections and therefore violates a fundamental right of every citizen to benefit from protection afforded to him by the Constitution. The extent of the protection afforded by the Constitution can explained by a passage by Harlan J in Poe v. Ullman[48]

“[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Harlan J in Poe v. Ullman, 367 U.S. 497, 543. (Underlining mine)

Article 137 creates a situation where a citizen has to navigate a complex maze of obstacles in form of money, knowledge, and connections to have the aid of the Constitution. In Uganda, in many cases even experienced legal minds are unable to agree on whether a certain issue is one of interpretation or enforcement as can be seen in the case of Mbabali Jude V Edward Kiwanuka Sekandi[49]. It unduly burdens indigent litigants who are unable to raise Constitutional issues or afford counsel to advise them or who are unable to afford to make a Constitutional application or make a reference to the CC under article 137. This is especially acute in civil trials where legal fees are high and costs are usually awarded against unsuccessful party. Regardless of courts’ practice not to award costs in public interest litigation, the practice may not apply in a reference arising from a civil trial.

In Uganda a large part of the population is illiterate and an even larger part of the population is poor. These poor people are the most vulnerable to abuse of especially police power, corrupt practices and administrative unfairness yet they are unable to afford assistance of counsel or afford to make a Constitutional application. Let us assume that the trial court was alive to the Constitutional issues in the case and makes a reference to the CC, who is going to follow it up? Who is going to argue it in the CC? How much delay to the trial will it cause? In the interim period is the indigent litigant protected? If it’s a criminal trial is he on bail? If its Government action, has it ceased?

Article 137 is unconstitutional because;

  • It illegitimately fetters the courts ability to expeditiously conduct trials and grant relief to litigants.

Article 28 includes a right to an expeditiously trial before an impartial tribunal and a right to the benefit of the due process of the law[50]. As seen earlier in our discussion, the Constitutional court takes a median time of 3.5 years to conclude an application to it. The right to an expeditious trial was considered by the European Court of Human Rights in McFarlane v Ireland[51]

“Delay may also arise when the State, by its failure to provide adequate resources or facilities for the disposal of litigation, has itself contributed to delay. ‘Systemic delay’ of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it. There may be prosecutorial delay within systemic delay. Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed. There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame. Where systemic delay is established it may amount to an infringement of a citizen’s Constitutional right to a trial with reasonable expedition…”

Delays in Uganda include prosecutorial delays, court delays (especially in the High Court due to the Criminal Session Practices) and systematic delays such as absence of assessors, disappearance of assessors and worst of all Constitutional references. If any judicial officer at any level of the judiciary could interpret the Constitution the delays due to Constitutional reference would be eliminated.

To understand the seriousness of the problem, let us take the example of Paul, a Primary Seven drop out who is being accused of Aggravated robbery and murder[52], He claims that the police broke into his house without a warrant, searched it, dug up his floor and discovered a gun with blood on it. Paul wants the gun and the blood excluded from evidence due to police misconduct. After two years on remand awaiting trial in the High Court luckily his cause gets cause listed[53]. If the judge made a Constitutional reference, Paul’s case would not be concluded during that particular criminal session. Let us further assume the CC hears him and dismisses his reference within one year and further assume that he is lucky enough to be cause listed again after one year. Paul has spent 4 years on remand and article 137 is responsible for all of those years.

Let us further assume that he is found innocent and wants to argue that article 28 guarantees him a right to compensation for the four years wrongfully spent in jail. He has to file a civil suit (which he cannot afford), a Constitutional reference to the CC (which he cannot afford). He has to wait two to five years for the CC to determine his reference and another two years for the trial court to conclude his case.

  • It a bridges the rule of law and leads to the abuse of the court process

This happens when litigants shy away from raising Constitutional issues or are unable to raise Constitutional issues due to the costs associated with the references, the delays they cause and even the lack of technical assistance due to illiteracy and poverty. It also abridges the rule of law when criminals use Constitutional references to buy time through causing delays yet if the lower courts court determine Constitutional issues, they would lack the opportunity[54].

  • It unduly and illegitimately restricts the right to a fair hearing

The right to a fair hearing is a fundamental right that is none derogable under Art 44 of the Constitution. Therefore any law abridging or restricting or affecting this right must be looked at with the strictest form of suspicion. This strict form of review suggested herein can be similar to that in applied in American jurisprudence, referred to as strict scrutiny. While parliament may have power to make laws restricting or regulating exercise of individual rights, certain rights are so fundamental that any restrictions are permeably unConstitutional unless they pass a high threshold of scrutiny[55]. These restrictions should pass a strict criteria in order to be found to be in conformity with the Constitutional guarantee of fundamental right. This does not mean categorization of right into important and none important rights that may be regulated in public interest but merely to show that certain rights are so fundamental to the dignity of an individual that a higher level of scrutiny is necessary.

The fight for justice against corruption is never easy. It never has been and never will be. It exacts a toll on our self, our families, our friends, and especially our children. In the end, I believe, as in my case, the price we pay is well worth holding on to our dignity. Frank Serpico

Does the right to affair hearing exist outside the Constitution.

Individual liberties are inherent in the individual as a human being. They are not given by Constitution but merely guaranteed and protected by it[56]. Even when the Constitution is abolished or the rights are purportedly withdrawn by a dictatorial state, it does not mean that they have ceased to exist. It simply means that human conditions have made the exercise and enforcement of the rights difficult or Impossible. Through promulgating of a Constitution the people agree on the extent and limitations to these rights but they have a right to redefine these rights through periodical amendment of the Constitution and the judiciary as the guardian of these rights can broaden on limit the scope of the rights through judicial interpretation. The case of City of Dallas vs. Mitchell[57],  Sergeant C.J, explained the inherence of fundamental rights as follows;

The rights of the individual are not derived from governmental agencies, either municipal, state or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief..

Since the individual right are inherent and therefore exist outside the Constitution even the Constitution itself may only impose legitimate restrictions to individual rights. These restrictions that are imposed by the Constitution itself must be strictly reviewed and meet strict scrutiny applied to legislation because even the Constitution its self must restrict a fundamental right within reasonable limits.

Conflict between provisions of the Constitution

While the provisions of the Constitution should be manually exclusive, each in perfect harmony with the other. It is inevitable that certain provisions will infringe individual rights. There is vast jurisprudence reconciling various provisions of the Constitution Uganda[58]. The problem with the Constitution of Uganda, is that it is unnecessarily wide and therefore inconsistences are more like to occur. When different provisions of the Constitution conflict, the courts have to choose which provision takes precedence over the other by interpreting the conflicting provisions to comply with each other[59].

Article 43 of the Constitution allows parliament to limit rights and freedoms based on public interest. Therefore the rights guaranteed by the Constitution are not absolute and may limited provided the limitations fall within Constitutional limitations. The general limitation on fundamental rights and freedoms under Article 43 are as follows:

  • In the enjoyment of the rights and freedoms prescribed in this chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.
  • Public interest under this article shall not permit –
    • Political persecution;
    • Detention without trial;
    • Any limitation of the enjoyment of the rights and freedom prescribed by this chapter beyond what is acceptable in a free and democratic society, or what is provided in this Constitution.

Therefore within article 43(2) (c), any limitation to rights and freedoms protected by the Constitution must be such as “is acceptable in a free and democratic society, or what is provided in this Constitution”. This in its self is a vague threshold because what is exactly is “acceptable in a free and democratic society”? How does the court determine what is acceptable? Where the dividing line between what is acceptable and what is unacceptable? However luckily other jurisdictions have grappled with a similar dilemma of determining which limitations are acceptable and which limitations are unacceptable. Under American jurisprudence, the courts have developed three levels of review or scrutiny i.e. strict scrutiny, intermediate scrutiny and regular scrutiny to determine which limitations are acceptable while the European Court of justice and the Canadian Supreme Court[60] also have their own similar standards of review.

In the US, Strict scrutiny requires that fundamental individual liberties can only be regulated to serve legitimate and compelling state interests and the regulations or restrictions imposed on the rights should not unduly burden the right and they should be the least burdensome means of achieving the state interest. Briefly;

  • The regulations or restrictions should serve or be for a legitimate and compelling state interest,
  • The regulations or restrictions imposed on the rights should not unduly burden the right (.i.e. it should not over burden the exercise of the right by individual by making it difficult for the citizens to exercise the right);
  • The regulations or restrictions imposed on the rights should be the least burdensome means or method of achieving the state interest[61]

Compelling state interests

These are area of interest that the state has a very legitimate and important interest in protecting. These must be aims or purposes that the state seeks to achieve which in the eyes of all reasonable people taking into account all the relevant circumstances would consider to be aims or purposes that are legitimate and of the utmost importance to the state to achieve.  A non-exhaustive list of these purposes can be, public welfare, raising government revenue or protection of the state (national security), protecting minorities, curing past injustices and promotion of trade etc.

To pass strict scrutiny, the law or policy must satisfy three tests:

  • It must be justified by a compelling governmental interest. While the Courts have never clearly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of a large number of individuals, and not violating explicit Constitutional protections.
  • The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
  • The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, but the Court generally evaluates it separately.[62]

Similar criteria has been set by the supreme court of Canada and adopted by the supreme court of Uganda[63]. In R v Jakes[64], the supreme court of Canada stated as follows;

“There are, in my view three important components of a proportionality test.  First the measures adopted must be carefully designed to achieve the objectives in question.  They must not be arbitrary, unfair, or based on irrational considerations.  In short they must be rationally connected to the objective.  Secondly, the means even if rationally connected to the objective in the first sense should impact as little as possible the right or freedom in question: R.V. Big M Drug Mart Limited (Supra)[65].  Thirdly there must be a proportionality between the effects of the measures which are responsible for limiting the charter, right or freedom and the objective which has been identified as of sufficient importance.”[66]

In the Drug Mart vs. Big M Drug Mart Limited at page 369 Dickson, J stated that:

“Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interests are reasonable – a form of proportionality test.  The Court may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.”[67].

The supreme court of Uganda in Sharon and Others v Makerere University Odoki CJ[68] adopted the passage by the Supreme Court of Canada above. According to Odoki CJ, in determining what is acceptable and reasonably justifiable in a free and democratic society, it is necessary to apply the principles on a case to case basis because of the proportionality test, which calls for the balancing of different interests.  In the balancing process, the relevant consideration will include:

  • the nature of the right that is limited;
  • its importance to an open and democratic society based on freedom and equality;
  • the extent of the limitation;
  • the efficacy and particularly where the limitation has to be necessary; and
  • whether the desired ends could reasonably be achieved through other less damaging means[69]

Minimal burden

The regulation or restrictions imposed on a fundamental right to achieve a compelling state interest must be the least burdensome or restrictive means of achieving the compelling state interest and it should not unduly burden the fundamental right. This was expressed by Odoki CJ as “whether the desired ends could reasonably be achieved through other less damaging means”

Let us try to apply the rules highlighted above to the CC;

  • What is the state interest in having CC? What purpose does the CC aim to serve

Am obviously not the correct person to answer this because in my opinion it is completely redundant, what were the framers afraid of, plurality of ideas! I mean it would have been much easier to allow the lower court give effect to their understanding of the Constitution and let the higher courts correct any misunderstanding on appeal or through review, after all the higher courts have supervision powers over the lower courts. Maybe the framers put in place the Constitutional court because they desired a centralized interpretation center by person of “proven” experience.

  • Is the state interest in having a CC a compelling/legitimate state interest?

The state interest seems to have been to have a centralized interpretation center presided over by persons of “proven” experience who could be “trusted” to interpret the Constitution”[70]. The question within article 43 is whether this can qualify as an important or compelling state interest? To determine this we have to ask ourselves “what mischief could be created by other courts interpreting the Constitution?” In other jurisdictions ranging from USA to the UK to the EU, the lower courts can interpret the Constitution (EU treaty in respect of EU and UK). Though there are many countries with respect of individual rights that have a specialized Constitutional court like Uganda, e.g. Germany, Spain, France, Belgium South Korea Brazil and Italy. the rest of the list reads as who is who of violators of human rights, Iran, Colombia, Romania, Russia, Serbia, Slovakia, Slovenia, Thailand, Turkey, Uganda, Ukraine Uzbekistan, Zambia, Jordan[71]. In addition only 54 countries in the world have Constitutional courts out of a total of 193 countries (10 of which have no codified Constitution). Are the lower courts qualified to interpret the Constitution, the answer to this must be yes, the lowest formal courts are manned by diploma holders most of whom have tens of years of experience or more, the grade one magistrates are law graduates with post graduate education, the high court judges are graduates with post graduate education and more than ten years’ experience, the justices of the CA are the justices of the CC and the justices of the supreme court can hear Constitutional appeals. Therefore these judicial officers have the necessary qualifications and even if they made an error, it can be corrected on appeal or through review. What is the worst that can happen? A plurality of ideas as to the extent of the Constitutional protections. There is no legitimate and compelling interest or put simply there is no mischief that would result from lower courts interpreting the Constitution justifying restricting the Constitutional right to a fair hearing.

  • Is having a CC the least burdensome/ restrictive means of achieving a compelling state interest. Does the restriction unduly burden the fundamental right? Or is the requirement of CC narrowly tailored to achieve that state interest.

Having “experienced and “proven” people interpret the Constitution is short form for having people who have similar ideas to the ruling elite. Africa has had a long history of dictatorship or prolonged regimes. The checks and balance that would have been created by different parties making appointments to the CC and SC were lost in the prolonged regimes such that there are no institutions to prevent abuses. In the end the CC has left the Constitution stagnant, the rule of law razor thin and justice very expensive and delayed. It has become a tool for buying time by criminals, thieves and human rights violators, it has killed the market place of ideas, burdens the right to a fair hearing by denying litigants the benefit of Constitutional protections within a cheap and accessible frame work[72], it has eroded the prestige of the judiciary and curtailed Ugandan jurisprudence.

The purpose of the Constitutional Court even if legitimate (which it is not) could have been accomplished without the Constitutional Court because even if the lower court made an interpretation it is appealable to courts manned by the “experienced and “proven” people. This courts they already have this power as appellant courts or superior courts of record. The C.c burdens the right to a fair hearing and it is illegitimate way of achieving the state purpose. There is a narrower and less burdensome way of controlling the lower courts without burdening the right to a fair hearing. The state interest can be achieved through the ordinary appellant process because “experienced and “proven” people will have final say as to the meaning of the Constitution without burdening the right to a fair hearing.  Odoki CJ expressed the minimum burden required to mean “whether the desired ends could reasonably be achieved through other less damaging means”[73]. As we have demonstrated any errors made by the lower courts can be corrected on appeal.

The cc falls short of both the strict scrutiny applied in American jurisprudence[74] and the proportionality test applied by the supreme court of Canada[75] and adopted by the Supreme Court of Uganda[76]. The Supreme Court seemed to prefer the Canadian approach to the American Approach. The Canadian approach has a two set test as follows;

  • There must be a pressing and substantial objective

The objective in having the CC must be to have the Constitution interpreted by a tribunal with sufficient experience and aptitude. The question to be asked here is whether this is “a pressing and substantial objective”.  It is arguable that it is legitimate to have the Constitution interpreted by persons of experience and proven ability but as seen above many countries that have CC are the who is who of human rights abusers though there is a respectable percentage of countries with rule of law and human rights respect that have CC. These outliers have a tradition of respect for human rights, democratic regimes and institutions to protect and preserve the rule of law. Uganda lacks this tradition of democratic regimes, lacks entrenched institutions and the CC has failed to acquit itself with excellence through inspired Constitutional jurisprudence, it is slow, marred by questionable decisions[77] and has failed to innovate in the years of its existence. Any way let us reluctantly concede that it’s a pressing and substantial objective.

  • The means must be proportional
    • The means must be rationally connected to the objective

Let us reluctantly concede this too.

  • There must be minimal impairment of rights

The problem must be found here because the due process guarantee under article 28 must mean that an individual has a right to the benefit of every Constitutional protection afforded by the Constitution. The requirement of the CC unduly impairs this right

First of all it makes it unattractive to raise a Constitutional issue because of cost, time considerations and lack of technical knowhow. Why should I as a defendant add extra years to my stay in prison by a reference where I have a chance of being tried and acquitted? Who is paying the extra costs? And what is the likelihood that I will succeed?

Secondly it denies the court the ability within its wisdom to protect and promote the Constitution. Even if a judicial officer wanted to he cannot apply the Constitution without making a reference to the CC except in circumstance of enforcement.

Thirdly it makes justice expensive and delays the administration of justice. As seen earlier on average it takes the CC 3.5 years to receive and decide a Constitutional application and many take even longer. This curtails the rule of law and lowers the prestige of the courts. Citizens do not see justice being done and this is very dangerous for an organ of government that in the words of Alexander Hamilton “lacks neither the purse nor the sword”. Let us reproduce his warning here because it is very important;

“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”

The judiciary must through its excellent decisions win public confidence to protect its dignity and independence. Citizens will vehemently defend the independence of the courts when they revere its decisions.

  • There must be proportionality between the infringement and objective R. v. Oakes  [1986] 1 S.C.R. 103, Dickson CJ

This third requirement means that there must be proportionality between the effects of the measures which are responsible for limiting the right or freedom and the objective which has been identified as of sufficient importance. This is similar to the minimum burden requirement under strict scrutiny. The means adopted to achieve the sufficiently important state purpose must be proportionate to the objective intended to achieve. Simply the measure restricting the freedom or right must be as reasonable or none intrusive as possible. The measures must as least restrictive as possible in such a way that they should not unduly burden the right being restricted[78]. Where the measure go beyond reasonable limits by restricting the right too much or are too broad or do more than achieve the sufficiently important state interest, the measure can be said to disproportionate[79].

Conclusion

The effect of article 137 is extremely disproportionate to the state interest in having the Constitution interpreted by persons of proven skill and experience. It does more than achieve the state interest, it makes justice expensive and causes unnecessary delays, constraints protection of individual rights, stagnates Constitutional interpretation, erodes the rule of law, kills the market place of ideas, violates the due process of the law by denying a litigant benefit of Constitutional provisions, unduly restricts judicial discretion and worst of all it prevents novel application of the Constitutional protection. It is inconsistent with article 28 of the Constitution.

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References

[1] Constitutional Petition No. 0028 Of 2012 Page 4 Para 5

[2] See: the Constitutional Court of Canada case of Edwards V Canada [1930] AC 124: See: also Black’s Law Dictionary 6th Edition, pp 8178-818.

[3] Professor John Willis , Statutory Interpretation in a Nutshell” (1938) 16 Can Bar Rev 1, 16

[4]  [1980] 1 All ER 529

[5] [1992] 3 WLR 1032, [1993] AC 593, [1993] 1 All ER 42, [1992] UKHL 3

[6] “Words must be given their natural and ordinary meaning where they are not ambiguous”

[7] Constitutional Petition No 6 of 2003

[8] Sir Rupert Cross, Statutory Interpretation, 3rd Edn., 1995

[9] [2000] All ER (D) 2177, [2001] 2 WLR 15 [2000] UKSC 7

[10] “While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed may give rise to new and fuller import to its meaning. A Constitutional provision containing a fundamental right is a permanent provision intended to cater for all time to come and, therefore, while interpreting such a provision, the approach of the Court should be dynamic, progressive and liberal or flexible, keeping in view ideals of the people, socio-economic and politico -cultural values so as to extend the benefit of the same to the maximum possible. In other words, the role of the Court should be to expand the scope of such a provision and not to extenuate it”.

[11] Constitutional Petition No 6 of 2003

[12] (1969) EA 357)

[13] Constitutional Appeal No 1 of 2002

[14] 192 US 268 (1940) LED 448.),

[15] Constitutional Appeal No 1 of 1998]

[16] Constitutional Appeal No 1 of 1998]

[17] See: Interpretation versus the enforcement powers of the High Court Pg. 8

[18] This is not to say that the Magistrates Courts, Court of Appeal and Supreme Court have no powers of enforcement.

[19] Constitutional Petition No. 0028 Of 2012 Page 4 Para 1

[20] Ibid, note 99

[21] Constitutional Petition No. 0028 Of 2012 Page 4 Para 1

[22] CA Civil Appeal No: 32 of 2002

[23] See. Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 Directions, 1996. (Legal Notice No 4 of 1996)

[24] Mbabali Jude V Edward Kiwanuka Sekandi Constitutional Petition No. 0028 Of 2012 Page 7

[25] Charles Harry Twagira v Ag & others SCCA 4 of 2007. Where a claim of redress for violation of a right or freedom is subject to interpretation of provisions of the Constitution, the claim should be via the Constitutional Court under Article 137 by petition.  Where the claim is in respect of a right or freedom that is clearly protected, it should be by a plaint in any other competent court

[26] Recently I was consulted by a police officer friend to suggest a criminal offense to charge a person who had put the picture of president m7 on a coffin and typed the words RIP (meaning Rest in Peace) obviously no criminal offense had been committed but the political and partisan police had to do something to show that they are working. This is obviously gross misconduct by the police. See also the case of Prince Kijanangoma in Fort Portal

[27]See Mifumi & others V AG SC Constitutional Appeal No. 02 of 2014 (invalidating a custom of bride price refund), Susan Kigula & 416 Others V Attorney General Constitutional Petition No 6 of 2003 (declaring sections of the Penal Code inconsistent with the Constitution)

[28] He referred us to Zachery Olum vs. Attorney General (Const. Petit. No. 6 of 1999) where this court (Twinomujuni, JA) had held that the language of article 44(a) admits of no other construction.  It prohibits any derogation from the enjoyment of the rights set out there in regardless of anything else in the Constitution Kigula Pg 9

[29] It is widely accepted that Constitutional rights that are specifically provided for in the Constitution do not preclude other rights not specifically mentioned. It must be true also that the expressly protected rights give rise to incidental rights that arise from those rights that are expressly provided for. See; Roe V Wade Roe v. Wade, 410 U.S. 113 (1973)

[30] See: Miranda V Arizona (1966)348 US 436

[31] See Gideon v wainright

[32] Holgate Mohammed vs. Duke (1984] Ac 437 at 437

[33] See Weeks v US (1914) 232 US 383 Mapp v Ohio (1961) 367 US 643

[34] Constitutional Petition No. 0028 Of 2012 Page 7-8

[35] Constitutional Petition No. 0028 Of 2012 Page 7-8

[36] Soon Yeon Kim and another v Attorney General Constitutional Reference number 6 of 2007

[37] Woolmington v DPP [1935] UKHL 1, [1935] AC 462,

[38] Harlan J in Poe v. Ullman, 367 U.S. 497, 543

[39] Mbabali Jude V Edward Kiwanuka Sekandi Constitutional Petition No. 0028 of 2012

[40] See Miranda vs. Arizona 384 U.S. 436 (1966)

[41] Constitutional petition number 06 OF 2003

[42] Constitutional petition number 0013 OF 2009

[43] Constitutional petition number 0036 OF 2012

[44] Constitutional petition number 35 OF 2013

[45]  Constitutional petition number 26 OF 2014

[46]  Constitutional petition number 26 OF 2014

[47] Us and UK have moved away from the “ it does not matter how evidence is obtained, provided that it has been obtained”

[48] (1961) 367 U.S. 497, 543

[49] Constitutional Petition No. 0028 of 2012

[50] Poe v. Ullman, 367 U.S. 497, 543

[51] Application no. 31333/06

[52] Under Article 28, Paul would be entitled to assistance of counsel provided by the state because these are both capital offenses but if he had been charged with simple defilement 9a none capital offence) he would not have a right to state appointed counsel. Contrast with Gideon v Wainright …which established the right to state appointed counsel for all indigent litigants in US

[53] In Uganda capital offices are trial by the High Court and it conducts its trials through “Criminal Sessions” which range from one to three per year in luck circuits. The sessions operate on a cause list which unfortunately is not first come first serve due to institutional incompetency or corruption or some other silly reason.

[54] See Uganda v Geoffrey Oneg Obel, Constitutional Petition/Reference NO.0024 OF 2011

[55] Dictum of Harlan J in Poe v. Ullman, 367 U.S. 497, 543 (above)

[56] Uganda: Obbo and Another v Attorney-General (2004) AHRLR 256

[57] City of Dallas vs. Mitchell 245 S.W. 944

[58] There are also ample authorities for the proposition that a Constitution should be interpreted as an integrated whole so that no single provision of the Constitution is segregated from others and considered alone, but that all provisions bearing upon a particular subject are brought into view and to be interpreted so as to achieve the greater purpose of the Constitution.  See South Dokata V. North Caroline 192 US 268, 1940 448 at 465

[59] The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other (Paul K. Ssemogerere and 2 others vs A.G Const. Appeal No 1 of 2002.)

[60] See; Drug Mart vs. Big M Drug Mart Limited [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321

[61] Roe v. Wade, 410 U.S. 113 (1973), United States v. Windsor, 191 U.S. 771 (2013), Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)

[62] Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” Kramer v. Union Free School District, 395 U. S. 621, 627 (1969); Shapiro v. Thompson, 394 U. S. 618, 634 (1969), Sherbert v. Verner, 374 U. S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.Griswold v. Connecticut, 381 U.S. at 485; Aptheker v. Secretary of State, 378 U. S. 500, 508 (1964); Cantwell v. Connecticut, 310 U. S. 296, 307-308 (1940); see [156] Eisenstadt v. Baird, 405 U.S. at 460, 463-464 (WHITE, J., concurring in result)

[63] Sharon and Others v Makerere University (Constitutional Appeal No. 2 of 2004 at page 39

[64] (1986) 26 DLR (4th Edn) at 227

[65] [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321

[66] See; Sharon and Others v Makerere University (Constitutional Appeal No. 2 of 2004 at page 39

[67] This violation was not justified under the second step of the two step process:

  1. There must be a pressing and substantial objective
  2. The means must be proportional
    1. The means must be rationally connected to the objective
    2. There must be minimal impairmentof rights
    3. There must be proportionality between the infringement and objective v. Oakes [1986] 1 S.C.R. 103,Dickson CJ

[68] (Constitutional Appeal No. 2 of 2004 at page 39

[69] See Sharon and Others v Makerere University Odoki CJ (Constitutional Appeal No. 2 of 2004 at page 39

[70] Am not of proven experience but am ably giving my perspective of the meaning of the Constitution. Why did the framers imagine that the justices of the cc had a monopoly of ideas

[71] See, Amnesty international, The State of the World’s Human Rights 2015/16

[72] May people fail to make reference because of the delays it causes, the confusion between interpretation and enforcement, the costs of a reference, the slowness of the CC, the inaccessibility of the CC. These burdens create a situation where by litigants are denied benefit of the Constitutional protections.

[73] Sharon and Others v Makerere University Odoki CJ (Constitutional Appeal No. 2 of 2004 at page 39

[74] Sherbert v. Verner, 374 U. S. 398

[75] Drug Mart vs. Big M Drug Mart Limited [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321

[76] Sharon and Others v Makerere University Odoki CJ (Constitutional Appeal No. 2 of 2004 at page 39

[77] Constitutional matter No. 4 of 2017; Eric Sabiiti Vs Attorney General and the Constitutional Application No. 6 of 2017

[78] The law must not do more than what is necessary to achieve the sufficiently important government interest, if I does more it can be said to be overboard or disproportionate, McCullen v. Coakley, 573 U. S. ___, ___ (2014)

[79] Laws restricting Constitutional rights should be narrowly-tailored laws, Ashcroft v. Free Speech Coalition, 535 U. S. 234, 244, Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569

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