CONSTITUTIONAL LAW

Meaning and nature

A constitution is a set of fundamental principles or established precedents according to which

a state or other organization is governed. These rules together make up, i.e. constitute what
the entity is. When these principles are written down into a single or set of legal documents,
those documents may be said to comprise a written constitution.

A constitution is primarily concerned with the established of government power and how
power is distributed between various organs of government so that each organ should know
the precise extent of its powers and that is important for its relations with others organs of
government but most importantly for relations between those organs and the citizens to
whom they owe these duties. That is why it is at times called a contract between the
governors and the governed. In this context of immediate concern are individual Human
Rights in society. It is the Grand norm i.e. the very reason for the validity of other laws. It is
the super law of the land from which all others stand to be tested.

Why do we call the constitution fundamental?

i. All laws derive their authority from the constitution and in this sense each law be
justified from the basis of the constitution. If that law is inconsistent with the
constitution, then the law shall to the extent of that inconsistency be null and void
(Refer to article 2(2) of the 1995 Constitution).
ii. It is concerned with the ultimate distribution of power. It defines how power is
acquired in political, administrative and judicial offices, who may be elected, who
may vote, what powers the holder of an office may enjoy and how he may vacate
office.
iii. It spells the relationship between the individual and the government that is it shows
rights and duties of individuals to the government and vice versa. In particular, it
establishes the extent of the rights the individual is supposed to enjoy.

The constitution lays down the political and other state institutions and distributes powers
among them and puts limitations on the exercise of these powers. The nature of any
constitution depends on the character of the country for which it is intended to govern. There
are a number of factors which have a bearing on the growth, evolution and mutation of the

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constitution. The country’s history, geographical position, social structure, political and
economic development, religious beliefs and racial composition play an important part. The
character of the constitution is determined by what interest and rights the community accepts
as absolutely essential.

Any organized community needs a body of persons to carry out the various functions, duties
and affairs of the community. The duties and functions must be specifically and sufficiently
defined. There must be assurance that those entrusted with the powers can be controlled or
removed should they attempt to encroach on the liberty of the individual. To achieve those
objectives there must be agreed principles and rules determining the structure and powers of
the government which is the totality of the persons entrusted with the affairs of the
community concerned.

This is often a function of a written constitution such documents often say that the people of
the country have decided upon those particular constitutional arrangements.

Art. 1 (3) of the constitution

“All power and authority of Government and its organs derive from this constitution, which
in turn derives its authority from t pee who consent to be governed in accordance with this
constitution.”

Constitutional law on the other hand is the body or branch of law concerned with the study,
interpretation, and application of a country or state’s constitution, including the issues of
governance, the powers of the branches and levels of government, civil liberties and civil
rights.

Sources of constitutional law

i. The constitution (1995)

ii. Ordinary legislation/Acts of parliament

With unwritten constitutions, this becomes the major source of constitutional law. But even
where there is a written constitution, we must always refer back to the law for example the
law provides for the freedom of association or speech. In this way the organic or
supplementary laws make part of constitutional law.

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 iii. Decisions of courts of law (Case law) or the judiciary particularly the doctrine of
precedent which provides for continuity. Decisions of judges are important especially
where decisions of court conflict or where the constitution is written in general terms.
iv. The source of authoritative writings i.e. the opinions of leading constitutional law
authorities. Here courts look for opinions of authorities of books on constitutional
law.
v. Constitutional conventions/customs

They are simply constitutional practices which have been accepted over a period of time in
civilized nations of the world. Professor Dicey has described constitutional conventions as
follows “Rules or practices that are not necessarily enforceable by acts of law because they
are based essentially on consent or acquiescence rather than enforcement. Nevertheless, they
are binding on those to whom they apply.” The most famous constitutional convention was
the pre 1945 convention in USA which stipulated that a US President could serve only 2
terms. President Franklin Roosevelt broke this convention.

Contents and classification of constitutions

It has been noted that the shape of any constitution depends on the history, environment and
character of the community it is intended to govern. Therefore, it follows that there are
different kinds of constitutions all over the world since states differ in all the above aspects.

The shape of the constitutions is also determined by the nature of leadership in a particular
state.

The leader may be of the following forms.

 Autocratic i.e. government of one ruler – dictatorship

 Oligarchy – government of a few people 9Father – son – wife – daughter etc)
 Democracy – one of America’s greatest leaders, Abraham Lincoln attempted to define
a democracy as a government of the people, by the people and for the people

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In order to deserve the label modern democracy a country needs to fulfill some basic
requirements - and they need not only be written down in its constitution but must be kept up
in everyday life by politicians and authorities.

 Guarantee of basic human rights to every individual person vis-a-vis the state and its
authorities as well as vis-à-vis any social groups (especially religious institutions) and
vis-à-vis persons.
 Separation of powers between the institutions f the state: Government [Executive
Power], parliament [Legislative power]and courts of law [Judicative Power]
 Freedom of opinion, speech, press and mass media.
 Religious liberty
 General and equal right to vote (one person, one voice).
 Good governance (focus on public interest and absence of corruption).

In a democracy there must be political supremacy of the people (Art. 1 of the Constitution),
the liberty of the people must be upheld and here must be equality of the people before the
law (Art. 2 1(1) of the Constitution of Uganda), universal adult suffrage 9Arts. 1 and 59),
regular elections (Art 1(, freedom of association, freedom of speech etc (chapter four of the
Constitution – Rights and freedoms).

Forms of constitution

Constitutions are of two forms namely;

 Written
 Unwritten

1. Written constitution
A constitution is said to be written when the basic and most important constitutional
laws are specifically enacted in one document or a series of documents which can be
referred to as a constitution. India has the longest constitution with 444 articles and
USA has the shortest.

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 2. Unwritten constitutions

Here there is no single document or a series of documents which can be claimed to

contain all the rules in the constitution. The constitution is therefore supposed to be found
in a series of statutes (Acts), decided cases, customs and conventions which are enacted
or evolve at different times. Britain is one of the few countries in the world without a
written constitution.

Why a written constitution

 Its provisions are easily ascertainable

 It can easily provide within itself the method of amendment (alteration)

A written constitution though tends to be rigid and it occasionally takes a violent revolution
to change it (see Uganda 1995 constitution).

Types of constitutions

Unitary v Federal Constitution

This is where the constitution provides for a political system that binds a group of states or
districts into a larger, non centralized, super state while allowing them to maintain their own
political identities. The basic distinction between a federal and a unitary system of
government relates to the fashion in which various powers and functions of government are
vested in the central governing authority and the regions which make up the country. The
reasons which necessitate the establishment of a federal system are numerous but among the
include;

 The question of culture: many federal states become so because they have divergent
and different ethnic groups and cherished characteristics which they consider require
special protection to secure their identity and allowing for their autonomous co-
existence. In such circumstances, it may be felt that a unitary system will destroy
those distinctions. Some of the countries using of following it are Canada,
Switzerland and former Yugoslavia.
 The size or expanse of the country: size becomes a consideration because it is obvious
that it is quite impossible for the central government to have effective control over

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 such a vast country. As such, for ease of governance of these autonomous regions,
federalism is granted. Examples of Federal states include Russia, Nigeria and Canada.
 Historical circumstances: the third reason can be found in the historical circumstances
surroundings a particular country. For example a country could have been formed out
of several autonomous states which considered it useful to give up some of their
autonomy in order to form part of the overall larger unit.

The main characteristics of a federal government relate to the way in which power is
distributed and there is often a clear demarcation as to what type of powers can be exercised
by the federal government and those to e exercised by the different regions so that there is a
distribution of power and any violation of the distribution can have grave constitutional
consequences. There are different ways in which federal constitutions may achieve this
distribution.

i. To list the powers of the central government and by implication those powers not
listed will belong to the states.
ii. The constitution may provide the reverse i.e. if it states the powers of the local
governments, by implications, the powers so left are for the centre.
iii. To list the powers of both the centre and the regions and then state that any
undistributed power shall be dealt within a specified manner.

The second characteristic of a federal government is that rather than having single
constitution each state has its own constitution as well as a central one. Each region is ruled
upon its own constitution but the federal constitution draws the boundaries.

Usually federal constitutions stipulated elaborate procedures for amendment. These are
usually difficult to amend. Federal constitutions always make provisions for a neutral
territory to be the national capital.

Unitary constitutions

The biggest distinction of a unitary constitution is that all powers are centralized and the
system of government in operation is a unified one whereby all powers and authorities are
vested in a single central government, to the extent that the region, district or local
government has limited powers. There are powers that are conferred to them by the state and

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may be taken away by the central government without necessarily infringing the constitution.
The general characteristic therefore is the concentration of power in the central government.

Unitary system constitution tends to be more flexible and can easily be amended. The vast
majority of African states employ unitary constitutions. The idea of federalism was an idea of
decentralization which was rejected by most African states at independence and the
arguments being made were that national unity was more appealing. In this case the idea of
National identity and a national language were crucial.

In between the federal and unitary system of government we have the idea of decentralization
which is especially an idea that has gained prominence in the case of Uganda.

Examples of modern federal systems include the U.S, Brazil, Germany, and Nigeria.

Monarchical and Republican Constitutions (leadership)

A monarchical system is a system of government where the head of state comes into power
by right of his or her birth. He or she derives the authority or power by virtue of royal
lineage.

Contemporary constitutional monarchies include Australia, the Bahamas, Bahrain, Barbados,

Belgium, Belize, Bhutan, Cambodia, Canada, Denmark, Grenada, Jamaica, Japan, Jordan,
Liechtenstein, Lesotho, Luxembourg, Malaysia, Monaco, and morocco, New Zealand, the
Netherlands, Norway, Papau New Guinea, Saint Vincent and the Grenadines, Solomon
Islands, Spain, Sweden, Thailand Tuvalu, and the United Kingdom.

With respect to the kind of powers that are exercised, a monarch can either be absolute or
constitutional i.e. a figure head or an actual ruler. A constitutional monarch will have his or
her powers spelt out in the constitution and those powers are largely ceremonial and
executive powers are usually left to elected rulers. This is the more common type of
monarchies that we have around. An absolute monarch in contrast exercises power absolutely
without any reference to any other instruments or institutions of state.

A Republic on the other a hand is a government which derives all its powers directly or
indirectly from the great body of the body of the people, and is administered by persons
holding their offices during pleasure for a limited period, or during good behavior. It is
essential to such a government that it be derived from the great body of the society, not from

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an inconsiderable proportion or a favored class of it (see how the women MPs were originally
elected). It is sufficient for such a government that the persons administering it be appointed,
either directly or indirectly, by the people; and that they hold their appointments by either of
the tenures just specified. See Article 1(4) of the Constitution.

(4) The people shall express their will and consent on who shall govern them and how they
should be governed, through regular, free and fair elections of their representatives or through
referenda.

Parliamentary and presidential (Executive functions)

A parliament republic or parliamentary constitutional republic is a type of republic which

operates under a parliamentary system of government - meaning a system with no clear cut
separation between the executive and legislative branches, but with a clear differentiation
between the head of government holding real power.

A presidential system of government is where the president is constitutionally independent of

the legislature. The presidential system, also known as executive government, is
distinguished by a singular figure who presides over the government by the will of the
people. The president directs the administrative affairs of the country, and usually oversees
foreign relations. Unlike a dictator, he does not possess authoritative powers but is subject to
the laws of the nation.

The president is elected directly by voters and is answerable to them. The separation of
powers is countered by checks and balances so that no one branch has complete control of the
government. Although the president cannot introduce bills to the legislature, he can sign them
into law or veto them. The judiciary can review the legality of executive decisions.

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PRE INDEPENDENCE AND THE INDEPENDENCE CONSTITUTIONAL
DEVELOPMENT IN UGANDA

Uganda has undergone a turbulent with up to four constitutions since gaining independence
from the United Kingdom.

Constitutional history

Pre-independence

Before the British and Germans contended for control over the territory, Uganda had three
different indigenous political systems; the Hima Caste systems, the Bunyoro Royal Clan
system and the Buganda Kingshi system. In 1894, the British succeeded in establishing a
protectorate and made Buganda, (the Baganda) administrators competent to collect taxes in
1902. A British style high court of Uganda and an appeals court for all Eastern African
protectorates were established. At the same time, a special commissioner was installed to
perform executive, legislative and judicial powers. In 1955, a constitutional monarchy with a
ministerial government based on the British model was established in 1957 political parties
emerged and direct elections were held.

Era of independence

Uganda became an independent Common Wealth nation on October 9, 1962 under a

constitution much influenced by the British. The constitution distributed powers between the
centre and the regions, albeit disproportionately. The Buganda Kingdom was given more
powers at the expense of the other three kingdoms, namely the Ankole, Tooro and Bunyoro
and other districts. Parliament was elected by direct universal suffrage, except for
parliamentarians from Buganda who were indirectly elected through the Council of Buganda.
The constitution provided for a Cabinet, drawn from and responsible to parliament, and
defined the powers of major government organs, civil service and judiciary.

In 1963 an amendment introduced a ceremonial president to replace Governor General as a

head of state and Kabaka Mutesa became the first elected president on 9 th October 1963. In
1966, the 1962 constitution was abrogated by Prime Minister Milton Obote, who declared
himself President under an interim Constitution of 1966. The parliament was constituted into
a constituent Assembly and given a mandate to draft new constitution for Uganda.

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The 1967 Constitution

This constitution came into force on September 8th, 1967. The major changes by this
constitution were the abolishment of the kingdoms and the introduction of a more centralized
system of government. The election of Members of parliament remained by direct universal
suffrage across the entire country but the president was now elected indirectly by the
parliament. Although the system of government had some democratic semblance, democratic
principles were hardly observed in practice, and Obote ruled basically with army support.
Shortly after the constitution of 1967, a state of emergency was declared and Uganda slowly
shifted to one party rule under the Uganda People’s Congress. In 1971, General Idi Amin
Dada seized power. Amin ruled the country thorough constitutional decrees and used the
army as the main instrument of government.

In 1979, Amin too, was overthrown by a combination of Ugandan and Tanzanian forces. In
the following years, the Ugandan military continued to participate actively in Ugandan
political processes. In 1985 Obote was again elected president, but only to be deposed a year
later by the Museveni led National Resistance a rebel movement that had been fighting the
regime for years.

On 21 December 1988 the National Resistance Council (NRC) enacted Statute No. 5 of 1988
which established the Uganda Constitutional Commission and gave nit responsibility to start
the process of developing a new constitution. The mandate of the commission was to consult
the people and make proposals for a democratic permanent constitution based on national
consensus.

In its final report of December 1992, the Commission stated that majority of Ugandans
preferred a Constituent Assembly directly elected by the people in order to be as full
representative as possible and provide greater legitimacy.

It proposed that an Assembly should be composed mainly of directly elected delegates plus
representatives of some interest groups.

The proposal was accepted by government and thus the Constituent Assembly consisted of
284 delegates elected by universal suffrage representing 214 electoral areas designated plus
additional representatives of specific stakeholders. Nevertheless, some people feared that the

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delegates to the Constituent Assembly might tailor the constitution to suit their future
political ambitions.

The elections to the Constituent Assembly took place in March 1994, apart from the
decisions relating to national language, land, federalism and the political system, all
provisions of the draft constitution were reached by consensus. The land question in Uganda
emerged when the British took land away from the communities and gave it to a few
individuals and was not resolved by the Constituent Assembly. The debate about the political
system, on the other hand, was rooted in the bad experience of Ugandans with political
parties in the post-independence era. On this basis, a “no party” politics, also known as
“movement politics”, was proposed.

In this system, no one is denied the right to run for any political office of his or her choice.
The stress is on personal merit and political parties are permitted to exist but are forbidden
from electoral campaigning and sponsoring candidates Movement policies were strictly
opposed by multiparty supporters. As a compromise, the movement policies were strictly
opposed by multiparty supporters. As a compromise, the movement type of government was
agreed to be extended for another 5 years but at the end of 3 years a public debate should be
held and after 4 years, the people of Uganda should choose between the two systems in a
referendum. On the whole, the constitution making process in Uganda was highly
participatory and an exercise to reconcile the society, reinstitute democracy, the rule of law
and to place limits on misuse of state power.

The 1995 Constitution

The Constituent Assembly adopted the new constitution in September 27th, 1995. The 1995
constitution, establishes a quasi-parliamentary system of government consisting of a
President, Prime Minister, Cabinet, unicameral Parliament, Supreme Court and constitutional
Court.

The preamble states that the constitution shall be based on “principles of unity, peace,
quality, democracy, social justice and progress and includes a long chapter on “National
Objectives and Directive Principles of State Policy.`

Moreover Article 1 of the constitution proclaims the sovereignty of the people and according
to Article 2, the constitution “shall have binding force on all authorities and persons

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throughout Uganda.” The constitution stresses the importance of protection of human rights
by stating that fundamental rights and freedoms of the individual are inherent and not granted
by the State and guarantees specific rights and amongst others, the freedoms like amongst
others, the freedom from discrimination, freedom of religion, the prohibition of torture and
slavery, the right to privacy, assembly and association.

In opposition to the Constitution of 1967, the current constitution contains a whole range of
powers that are shared between the President, Parliament and other constitutional bodies.
Among others, the presidential power of appointment regarding the Vice President and
Ministers is subject to the approval of the Parliament and the appointment of Permanent
Secretaries and heads of departments have to be made upon recommendation of the Public
Service Commission. The Public Service Commission moreover has the power to appoint all
other civil servants, judicial officers like Judges of the High Court, Court of Appeal and the
Supreme Court and Magistrates are appointed by the Judicial Service Commission.

Also in other areas the power of the Executive has been cut down extremely: The President
no longer has the power to dissolve Parliament and in the area of Legislation the Parliament
can override the presidential veto by two-thirds majority. The executive’s powers to borrow
money are also limited since Parliament now first has to improve borrowing.

The Referenda

Referendum is a general vote by the electorate on a single political question that has been
referred to them by the Legislature for a direct decision.

The first referendum favoured a “no-party” system of government but was invalidated by a
court ruling some years after because of procedural shortcomings, Zachary Olum and P.
Semwogerere vs. Attorney General.

The second referendum approved a multiparty system. In 2005, the Constitution was
amended with the effect of removal of Presidential term limits and the legalization of the
multiparty political system.

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Constitutional Challenges

In order to under-pin the democratic measures provided for by the Constitution of 1995 and
hold the Ugandan government accountable to the standards defined in the Constitution and in
its regional and international treaties, a further powerful and influential civil society has to be
further strengthened.

Democratic deficits are also mentioned regarding the frequent use of constitutional
amendments. In a newspaper article Emmanuel Kitamirike, Executive Director of the Uganda
Youth Network, alleges that “the NRM government has rendered the Constitution at par with
ordinary legislation and exploited its numbers to reinforce the widely acclaimed idea of an
omnipotent Executive and a rubber stamp Legislature that regards the Constitution as a mere
instrument for the entrenchment of personal rule”, He adds that “if the NRM government
does not check its constitutional amendment appetite, we are likely to dent constitutionalism
and good governance thereby reversing the democracy dividends being experienced.

In a ruling delivered on February 1, 2011, the Constitutional Court held that a Member of
Parliament elected as party flag bearer cannot stand for election on another party’s ticket or
as independent who seeks to switch to a political party.

In ruling sent 78 Members of Parliament out of Parliament. The ruling has its basis in article
83 of the Constitution which states that:

“A member of Parliament shall vacate his or her seat in Parliament (a) if that person leaves
the political party for which he or she stood as candidate for election to Parliament to join
another political party or to remain in Parliament as an independent, or (h) if having been
elected to parliament as an independent candidate that person joins a political party”.

In light of the Kampala vote for mayor in March 2011, lawyers debated the question as to
whether article 83 strictly deals with MPs seeking to stand for re-election to Parliament or
whether the article applies even when Members of Parliament are contesting for other offices,
and in the latter case affecting two mayoral race aspirants Michael Mabikke and Erias
Lukwago. The strict interpretation seems to have taken precedence since Lukwago was
elected the mayor of Kampala in March 2011.

The International Bar Association in its Human Rights Institute Report from 2007 observes
“real threats to judicial independence in political cases”. The organization states that although
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“Uganda’s current government is to be commended for bringing a degree of peace and
stability (…) judging the Government by the poor standards of previous regimes is not the
proper benchmark against which to assess its performance”. The threat of the President to
suspend judges even though not having the constitutional power to do so and the intimidation
of individual members of the judiciary would go beyond the legitimate criticism of court
decisions and suggest executive control over the courts. In 2005 and 2007, government forces
in and around the High court further increased the climate of fear in the Judiciary. The lack of
resources and infrastructure puts further strains on the judicial offices in the IBAHRI’s
opinion lacks transparency. The use of military courts to try civilians is a further matter of
concern. Also, so called ‘safe houses’, special detention centers, are reported to still be in use,
thereby infringing a range of fundamental rights guaranteed by the Constitution, including the
right to personal liberty (article 23), the prohibition of inhuman treatment (article 26), the
right to a fair hearing (article 28).

FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

Human rights tend to be placed in classification including

First generation rights which are largely civil and political rights and are essentially
Eurocentric in origin i.e. article 21-29.

Second generation rights which are social, economic and cultural and are often associated
with the socialist ideology for instance the right to work, housing, education.

Third generation rights which are often collective and attributed to groups and were largely
born out of decolonization of right to clean environment, self determination, peace.

Human rights have different manifestation including the international Universal Declaration
of Human rights, UN convention against Torture and regionally the European and American
conventions of 1950 and 1969 respectively and the African charter of Human and Peoples
rights of 1981 and domestically the Bill of Rights provisions in our 1995 national
constitution.

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The protection and safeguards fundamental human rights under the 1995 Constitution
(Chapter 4).

Chapter 4 opens with article 20 which deals with the state of Human rights and their
protection by government and other members of society. Fundamental rights are not gifts
from the state. They inhere in a person by reason of his birth and therefore prior to the state
and the law.

This means that these rights are merely re-stated by the constitution and it does not purport to
be creating them, for they already exist to that extent, they must be looked at in a different
light from other legal rights. It is therefore important that the state should in no way always
require permission from its organs and agencies like the Uganda Police in order for the
citizens to enjoy these rights. This is the single most things to remember when looking at the
bill of rights.

Article 20(1) provides for the inherence of human rights meanwhile clause (2) requires that
all organs and agencies of government and all persons to respect, uphold and promote human
rights. In effect the observation of human rights is not only on part of the state but also to
private actors and entities.

Article 21 deals with the right to equality and freedom from discrimination. This provision
can be said to be the foundation of the entire bill of rights under chapter 4. Clause 2
elaborates on the grounds of discrimination prohibited by the freedom from discrimination of
race, colour, tribe, religion, political opinion and disability. The essence of the right is that
citizens as individuals or groups should be treated in the same manner irrespective of their
peculiar characteristics and backgrounds or situations.

Clause 3 defines what is meant by discrimination as different treatment accorded in different

persons mainly because of their descriptions by sex, race, colour, religion, tribe, and creed.
The word that is material here is different treatment accorded, if a person is treated in the
same way as the rest, he may not claim that he has been discriminated against.

Clause 4 embodies the concept of affirmative action and it allows parliament to make laws
for the implementation of politics and programmers that address imbalances in society.
Affirmative action is evidenced in such measures as adding 1.5 points to female students on
joining the university, economic empowerment through financial associations. The Local

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Government Act Cap 243 as amended (S10) also requires two thirds of the composition of
the district councils to be women.

Protection of the right to life (Article 22)

Article 22 protects the right to life in 2 situations:

i) The right of an existing living person

ii) The right of the unborn child

The right to life guaranteed under article 22 is not an absolute right as it can be taken away in
execution of a sentence of death or in the case of the unborn child in the situations authorized
by the law. The deprivation of the life by way of capital punishment or death penalty remains
controversial. There have been arguments on the unconstitutionality of the death penalty with
the more significant being that it contravenes the right of the individual not to be subjected to
cruel, inhuman or degrading punishment or treatment which is contained in article 24 of our
constitution.

The argument is on 2 grounds;-

 The forms of execution are inhuman and that it dehumanizes all those who participate
in the execution of the death penalty.
 The “death row” phenomenon occasioned by delays in carrying out the death sentence
amounts to inhuman treatment.

However to ensure that the right to life through not absolute may not be arbitrarily
taken away, the following safeguards have been included in article 22.

 It must be passed by a court of competent jurisdiction such that an LC court for

instance does not pass a death sentence.
 In a fair trial (article 28 (1).
 In respect of criminal laws of Uganda (article 28(7) and (12) and
 It must be confirmed by the highest appellate court.

The right to Personal Liberty (Article 23)

Article 23 essentially secures the right to personal liberty but it also secures the security of
the person of the individual. It is also often interrelated with the right to movement under

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article 29(2). Further it also constructed as part of the guarantees within the criminal justice
system. Article 23 provides not only the substantive right to personal liberty but also
procedural and remedial guarantees. The purpose of article 23 is to regulate conduct of those
persons that get to contact with the individual and are likely to violate personal liberty. Such
persons include the police, the provisions service, the courts and to an extent the armed forces
and the intelligence services.

Article 23 presumes that the right to personal liberty is inherent and that the state and its
agencies must desist from acts that interfere with that liberty.

Article 23 (1) provides the exceptions when the right to personal liberty may be interfered
with. These include;

a) Where the restraint is in pursuance of an execution of a sentence or order of a court.

b) In execution of the order of a court made to secure the fulfillment of any obligation
impose on that person by law.
c) For the purposive of bringing that person before a court in execution of the order of a
court or upon reasonable suspicion that that person has committed or is about to
commit a criminal offence under the laws of Uganda.
d) It also covers the restraint of specific categories of persons and these include minors
for their education or welfare, persons of unsound mind, drug addicts and alcoholics
for their treatment. e) Unlawful emigrants and entrants for their deportation and
extradition.
e) Restraint is also justified for health reasons that is existing or prevailing health
concerns in which case personal liberty will be restricted to prevent spread of an
infectious or contagious disease.
f) Paragraph (h) includes any other authorized circumstances by law similar to those in
clauses (a)-(g).

It must be trite law that where the restraint is in pursuance of a court order which is itself
unconstitutional, then it is unjustified and unconstitutional.

Article 23 (2) requires that a person who is detained is to be kept in a place authorized by
law. The phase “a place authorized by law” implies 2 things namely first that the place must
be gazette and must be a place of detention of individuals and secondly that the place must be
reasonably accessible to the public. The ultimate purpose of clause 2 is to secure the security
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Lecture notes for Constitutional Law 2022 by Ms Natamba Irene
of the person or individual and avoiding likely disappearance of individuals to unknown
detention facilities. Clause 2 must be read with 23(5) which require the detained person to
have his or her next of kin, lawyer and doctor to have reasonable access to such detained
person. The relevance of clauses 2 and 5 is to prevent such facilities as safe houses and both
clauses are new under the 1995 constitution having not previously existed in the 1967
constitution or any other previous constitution.

Article 23(3) requires that a person who has been arrested, restricted or detained be informed
in a language he/she understands the reasons for detention of the right to a counsel of one’s
choice. This clause secures the traditional requirement for the police to caution an arrested
person on the right not to prejudice himself or herself and of his right to consult a lawyer to
represent him.

Article 23(4) is to the effect that a person arrested or detained (a) for the purpose of bringing
him or her before court in execution of an order of a court or (b) upon reasonable suspicion of
his/her having committed or being about to commit a criminal offence under the laws of
Uganda shall be brought to court as soon as possible not later than 48 hours from the time of
his or her arrest.

Article 23(5) provides that where a person is detained (a) the next of kin shall at the request
of that person be informed immediately (b) the next of kin, lawyer and personal doctor of the
person shall be allowed reasonable access to that person.

Clause 6 secures a right to grant of bail. The right to bail is founded on the presumption of
innocence guaranteed under article 28(3)(a) and that therefore the individual should be
allowed to regain his or her liberty while being required to attend trial. Therefore the
conditions of bail should be reasonable and not punitive as to render that presumption
illusory.

Article 23(7) is the right to compensation for unlawful arrest or detention from the state or the
individual.

Clause 8 embodies the principle of criminal procedure regarding sentencing i.e. that the
period spent in lawful custody shall be taken into account in imposing a sentence of
imprisonment.

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Lecture notes for Constitutional Law 2022 by Ms Natamba Irene
Clause 9 is the right to an order of habeas corpus which is inviolable in the sense that it
cannot be derogated from or suspended. This is provided for under article 44(d). The order of
habeas corpus has traditionally been a remedial procedure to secure a person’s liberty
whereby the court orders whoever is detaining an individual to produce him before the court
and give justification or the detention failure of which the individual should then be free to
regain his or personal liberty. It is therefore ordered and granted where it appears that the
suspect is being detained on no lawful ground or beyond the constitutionally allowed hours
before being charged.

Freedom from torture, inhuman and degrading treatment

Article 24 secures the respect to human dignity by prohibiting torture and inhuman or
degrading treatment or punishment. The freedoms under article 24 are absolute given the
provisions of article 44(a). Torture refers to acts against the physical integrity of the
individual while cruel, inhuman or degrading treatment or punishment refers to conduct that
causes unnecessary suffering, beshame or effaces the dignity of the person. What is cruel or
inhuman is dependent on a particular conduct and circumstances and therefore the term has
come to be applied to a wide range of conduct.

Freedom from slavery, servitude or performance of forced labour (Article 25)

Article 25 secures the freedom from slavery and servitude under clause 1 and freedom from
performance of forced labour under clause 2. The freedom from slavery and servitude is also
an absolute right given the provisions of article 44(b). The freedom from performance of
forced labour has limitations and clause 3 of article 25 defines instances which cannot be
regarded as forced labour under the constitution.

 Labour regained as a consequence of a sentence of court.

 Labour not being a consequence of a sentence of court but which is necessary for the
hygiene and maintenance of place of detention in which a person may be.
 Labour requires of a member of a disciplined force as a part of that member’s duties
as such or in the case of a person who has conscientious objections to military service,
any labour which that person is required by law to perform in place of that service.
 Labour required when the country is at war or there is an emergency or calamity.
 Labor that is part of reasonable and normal communal and other civic obligations.

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Lecture notes for Constitutional Law 2022 by Ms Natamba Irene
The right to property (Article 26)

Article 26 guarantees the right to property either individually or collectively. As such an

individual cannot be deprived of property except in certain circumstances and conditions
which are;

a) That the acquisition of property is for a public purpose under 26 (2) (a).
b) The acquisition of property is founded on the law. There must be an act of parliament
or more under a ministerial order which calls for prompt payment of a fair
compensation.
c) The right of access to a court of law.

The Land Acquisition Act (Cap 226) which is the principle law that governs such matters
appears to pass this test as it provides for the right to compensation under section 594) and
the right of appeal to the High Court is provided for under section 13 of the Act.

It appears that whereas a person may be compulsorily deprived of property in the public
interest, the conditions specified in article 26(2) (b) namely payment of adequate and fair
compensation of such property and the right to access to a court of law must be fulfilled. It is
not simply enough to state that the public interest requirment was satisfied. It is also
important to note that the compensation must be prior to the taking of possession or
acquisition of the property and not after.

Right to a fair hearing

Article 28 provides for a right to a fair hearing. Article 28(4) (a) raises a constitutional issue.
Article 44(c) of the 1995 constitution states that the right to a fair hearing is a non derogable
right not withstanding anything in this constitution. If the right to be presumed innocent until
the contrary is proven is to be taken to be a fundamental aspect of the right to a fair trial then
no doubt article 28(4)(a) stands to be challenged to the extent that it places a reverse onus on
the accused. And to the extent that it impairs a fundamental non derogable right then not
withstanding any provision (i.e. article 28(4)(a), the right to be presumed innocent as part of a
right to a fair hearing must prevail.

 The right to be informed in the language that the individual understands of the offence
for which he/she is being tried. This right is often interrelated with that in paragraph

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Lecture notes for Constitutional Law 2022 by Ms Natamba Irene
 (d) of being afforded an interpreter. Here the individual does not understand the
language sued at the trial.
 The right to legal representation and facilities for the preparation of the defense in
respect of offence whose penalty is one of death sentence or life imprisonment, the
right to legal representation is at the expense of the state. On the other hand, the right
to be afforded adequate time and facilities for the preparation of a case include the
right to be granted an adjournment, the services of a lawyer or the attendance of one’s
advocate. The right to adequate time and facilities for preparation of one’s legal
defense has been considered to include the right to seek for an adjournment to retain
counsel where the previous one has withdrawn from handling the case.
 The right to be afforded facilities in the sense of obtaining attendance and
examination of witnesses.

Clause 8 secures the right of an individual against trial in absentia therefore the individual
must be tried in his or her presence unless he/she has become a menace.

Clause 6 provides for the right of the individual to the copy of the proceedings of the trial.

Clause 7 states that one shall not be tried for an offence which did not constitute an
offence at such time. This provision is meant to ensure that acts lawfully done at the time
when they were lawful must not be retrospectively criminalized.

Clause 8 requires that one should not be punished in the way which such offence would
have been punished under a double jeopardy i.e. punished twice for the same offence.

Clause 10 states that no person shall be tried for a criminal offence if the person shows
that he/she has been pardoned. In criminal law proceedings therefore, this is usually a
valid plea to charges if it can be established with positive evidence.

Clause 11 secures the right for self incrimination by providing for non compellable
witness. Accused trials, the accused and his or her spouse are competent but not
compellable witnesses.

Clause 12 states that for a person to be punished for any criminal offence, such an offence
must be clearly defined by law and the penalty prescribed.

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Lecture notes for Constitutional Law 2022 by Ms Natamba Irene
 Protection of freedom of conscience, expression, movement, religion, assembly and
association (Article 29)

Article 29 secures a whole range of freedom including;

 Freedom of thought conscience and belief under clause 1(b).

 Freedom of speech and expression including freedom of the press under article
29(1) (a).
 Freedom to practice one’s religious belief under article 29(1) (c).
 Freedom of assembly under article 29(1) (d).
 Freedom of association under article 29(1) (e) and freedom of movement under
article 29(2).

The right to freedom of religious belief entails the right to;

 Being to a particular religious faith.

 Protest and manifest that faith through worship and dissemination.

Freedom of religion must however be exercised in a manner consistent with the constitution.

In the enjoyment of one’s belief, one may not therefore violate his or indeed another person’s
constitutionally guaranteed rights.

Freedom of speech and expression on the other hand entails the right to disseminate views
and opinions and the orally right of the public to be informed. The major concern with
freedom of speech and expression is the restrictions that tend to be placed upon it by way of
penal provisions such as the laws of sedition, publishing false news, promotion of
sectarianism as well as administrative measures such as censorship, banning and closure of
newspapers. The question has been whether those types of restrictions are permissible under
article 43(2) in the sense that they are necessary and justifiable in a free and democratic
society.

The right to freedom of movement entailed in article 29(2) includes the right to a passport
or other travel document.

It has also been held that the restriction of an individual to a particular part of the country e.g.
Karamoja constitutes not only an infringement of his right to personal liberty but it also
infringes his right to freedom of movement.
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Lecture notes for Constitutional Law 2022 by Ms Natamba Irene