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The Ugandan Constitutional Court has finally allowed argument, for a second time, in a case which has been waiting to be heard for the past 8 years, despite the Defendant’s absence.  Back in July 2015, when the case was previously postponed, the Plaintiff expressed bewilderment at the Court’s perennial lack of a quorum and wondered whether the Justices were taking the matter seriously, noting it had failed the public’s interest. That story here.

Now finally, eight  years after filing the Constitutional Court petition challenging a provision of the Equal Opportunities Commission Act, 2007, the Constitutional Court, in the case of Jjuuko Adrian v. Attorney General, (Constitutional Petition No. 1 of 2009) has heard the case, even though the Attorney general or appropriate representative was not present.

The case was first heard on 3rd October 2011, after a delay of almost two years, which was caused by the lack of quorum.  After some time of being unable to come up with a judgment, despite many requests and reminders from the petitioner, petitioner’s counsel and civil society organizations, an application for rehearing was filed and the court decided to rehear the petition since some of the judges who heard the initial petition had since retired.

What follows is a post hearing report prepared by Plaintiff, Adrian Jjuuko, the Executive Director of Human Rights Awareness and Promotion Forum (HRAPF), as follows: 

“On 25th April 2016, the Constitutional Court reheard the case of Jjuuko Adrian v Attorney General that has been pending before the Court for 8 years. The case challenges Section 15(6)(d) of the Equal Opportunities Commission Act, 2007. The provision provides that the Equal Opportunities Commission (EOC) shall not investigate any matter involving behavior, which is considered to be ‘immoral and socially harmful’ or ‘unacceptable by the majority of the cultural and social communities in Uganda.’  This section has the effect of preventing the EOC from hearing matters regarding marginalized communities such as women, LGBTI persons, and sex workers as long as their behavior are construed by the majority to be ‘immoral and socially harmful and unacceptable.’

The case was reheard by a panel of five justices of the Constitutional Court: Hon. Lady Justice Catherine K. Bamugemereire; Hon. Lady Justice Solomy Balungi Bossa; Hon. Justice Kenneth Kakuru, Hon. Justice Richard Buteera and Hon. Justice Cheborion Barishaki.

By the time the Justices entered, the Attorney General was not represented and the court adjourned for one hour to allow the Attorney General time to appear.

After one hour, the Attorney General had still not made an appearance and counsel for the Petitioner requested the court to proceed without the Attorney General since the Attorney General had been served with the hearing notices. This was agreed to by the court and only the Petitioner was heard.

The petitioner was represented by Mr. Ladislaus Kiiza Rwakafuuzi of M/S Rwakafuuzi & Co. Advocates and Ms Patricia Kimera of Human Rights Awareness and Promotion Forum (HRAPF).

In their submissions, counsel for the petitioner asked court to declare Section 15(6)(d) of the Equal Opportunities Commission Act, 2007 (EOC Act) unconstitutional for the
following reasons:

i) It was a foreign provision in the EOC Act that was inconsistent with the other provisions and spirit of the Act.

ii) It encouraged discrimination that was already prohibited by the Constitution and was thus was inconsistent with Articles 21(1), (2) and (3) of the Constitution. The kind of discrimination that was envisaged under Article 21(4) was positive discrimination to redress imbalances and not the discrimination encouraged under Section 5(6)(d) of the EOC Act.

iii) The provision was inconsistent with Article 20(1) and (2) of the Constitution since fundamental rights of individuals are inherent and not granted by the state. The state, all agencies and persons are supposed to uphold these rights. The language used in this Article was inclusive and could not permit exclusion of certain categories of persons.

iv) The provision was inconsistent with Article 32 of the Constitution, which provides for affirmative action in favor of the marginalized. TheConstitution takes such a strong stand against discrimination that it created a separate Article to protect the interests of minorities. By excluding some people as being morally harmful and socially unacceptable, the provision mandates the EOC and other people to discriminate, which goes against the purpose of the Act.

v) The provision also violates the right to a fair hearing as protected under Article 28 of the Constitution. Since the EOC is given powers of a court, all principles including those under the right to a fair trial must be upheld. By denying the Commission the powers to investigate matters of persons regarded as immoral or socially harmful, the section denies persons regarded as social misfits a right to be heard which is inconsistent with Article 28 of the Constitution.

vi) Although Article 43 of the Constitution limits rights in that their enjoyment should not prejudice the public interest; the public interest only permits the limitation of rights to the extent that is acceptable in a free and democratic society. Therefore any law that seeks to curtail a right must be clear and not ambiguous. The language used in Section (15)(6)(d) is ambiguous and it does not stipulate the parameters under which someone can consider a behavior as immoral or socially unacceptable in society.

The Court reserved its judgment and it will be given on notice. HRAPF and the CSCHRCL are happy that this case has finally been reheard, and we are hopeful that this time, the judgment will not be delayed the same way it was when the case was first heard.”

By Melanie Nathan
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