Constitutional Law Exam
Constitutional Law Exam
L1210
NOT A RETAKE
No: 5,2,9,1
No. 5 a)
According to the black’s law dictionary a citizen is a person who, by either birth or naturalization, is
a member of a political community, owing allegiance to the community and being entitled to enjoy all
its civil rights and protections; a member of the civil state, entitled to all its privileges. The third
Acquisition of citizenship by a person who’s community is not included the third schedule of the 1995
Control Act of 1999, the following persons upon application shall upon application be registered as
citizens of the Republic of Uganda, if they married to a citizen of Uganda for more than five years and
it is legally proven, a person who legally and voluntarily moved to Uganda and has been living here
for more than 20 years. The procedure for citizenship by registration is expounded on in Section 15 of
the citizenship act stating that the person must show interest by putting in writing an application,
renouncing any other nationality or citizenship he or she may possess, taking allegiance as specified
in the fourth schedule of the constitution, has made and registered a declaration of his or her
intentions
concerning residency.
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In Center for Public Interest Law Ltd Salima Namusobya v The Attorney General, the
petitioners sought the following declarations that when a refugee satisfies the requirements under the
laws of Uganda under article 12(2) should be able to apply for citizenship by registration and under
article 13 of the constitution apply for citizenship through naturalization. The petitioners sought an
order that all relevant government agencies and departments process applications for refugees who’ve
applied for citizenship by registration and naturalization as long as they satisfy the legal requirements.
However the petition was stopped dead in its tracks due to the absence of the respondent.
Under section 16 of the Uganda Citizenship and Immigration Control Act of 1999, citizenship by
naturalization is another way a person who is not provided for in the third schedule can acquire
citizenship. Under citizen by naturalization according to the act, the board may grant to an alien
citizenship through a certificate of naturalization after making an application as specified under this
section. The qualifications for naturalization are that this person must have lived in Uganda for a
period of 20 years, has resided in Uganda throughout the period of 24 months immediately after
registration can be met if a) a person voluntarily acquires citizenship of another country b) voluntary
service in the armed forces of a country which is hostile or at war with Uganda.
In the case of Shamima Begum, Shamima Begum who left the U.K for Syria to join the Islamic State
of Iran and Syria as a teenager was not allowed to return to the U.K to fight her citizenship case, and
with a unanimous ruling the supreme court said that her rights were not breached when she was
refused permission to return. Her joining the forces of a group hostile to the U.K was considered
No. 5b)
Center for Public Law Ltd and Anor V. attorney General, Constitutional Petition Number 34 of
2010) In this case, the applicants sought the courts declaration that Article 12(2)(c) of the
Constitution confers citizenship by registration of refugees in Uganda where such refuges satisfy the
requirements under the provisions of section 15 of the Uganda Citizenship and Immigration
Control Act. They additionally, they sought courts declaration that that the relevant government
departments and or agencies process applications for citizenship by registration and or naturalization
by refugees who satisfy the requirements for citizenship under the relevant legislation and regulations.
On the first issue, court relied that on the rule of harmonization to resolve it, reasoning that one of the
cardinal rules of constitutional interpretation is that all provisions of the Constitution must be read
together, one provision not negating the other, especially provisions touching on the same subject. .
Court held that the Constitution has provided under article 13 for another mean for another path to
citizenship that people who do not qualify under either birth or registration can take. Article 12
creates a right in favour of certain categories of people who would be entitled to registration as
citizens of Uganda upon application. Court held that if one does not fall within the categories of
people expressed to be entitled to registration on application by the Constitution then one cannot
become a citizen by virtue of registration. In resolving the second issue under contention, court noted
that Article 137 (3) of the Constitution permits it to offer redress where it is appropriate. It however
declined to do so noting that there was a serious lack of evidence that any application for either
registration as a citizen or naturalization as a citizen of Uganda has ever been made and the same was
rejected or not processed by any government agency. Court relied on Legal Brains Trust (LBT)
Limited v The Attorney General of Uganda Appeal No. 4 of 2012 [East African Court of Justice
(Appellate Division)] they could not issue orders at large to bodies not identified and held that since
no Government Agency was named or cited, the government agencies were assumed to be doing their
role because of this and as such, they could not compel any agency to do anything.
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No. 2
The doctrine of the separation of powers was birthed so that all the organs do not seep into the
functions of the others. Overlooking the difference in duties of the executive, judiciary and legislature
they still work together to create a seamless government. Montesquieu in his idea of separation of
powers required a difference in staff and autonomy. Checks and balances are the pivot of this Greek
tragedy as the executive judiciary and legislature check the powers if each other restraining any one of
them from obtaining absolute power. In Paul K Ssemwogerere & Anor v. AG, a petition was
brought forth questioning the validity of the Referendum (Political Systems) Act, 2000 after being
passed with so many illegalities as to time frame stated in the constitution. Court held that the
referendum act was void, due to the absence of the assent of the president , a certificate from the
In comparison with the 1966, 1967 and the 1995 constitutions has provided for more demarcations to
create the doctrine of separation of powers. The constitution provides that there are three organs, i.e.
the executive, the legislature, and the judiciary. Article 99 - powers of executive, Article 77 -
establishes parliament, 79 - gives functions of parliament, Article 126 - establishes jurisdiction and
power and of the judiciary, and all exercise their powers independently. In the case of Attorney
Justice, kanyeihamba after being appointed 2 weeks to the hearing and asked to recuse himself, had
the disccenting rulling where he held that, “……The Chief Executive of Uganda who is equally a
protector and implementer of the Constitution, albeit at different levels from those used by the Courts
of Law, should be allowed to breathe and think aloud about his or her responsibilities to the State and
Ugandans without having to be dragged to court every time. The President should be allowed to
investigate matters within the jurisdiction of the Presidency and should be allowed discretion in
combating insurgencies and rebellions as well to wage a war authorized by Parliament without
unnecessary interference from the Courts of Judicature… It would be bad law, in my opinion, if every
time the President of Uganda thought and proposed that a certain course of action should be
investigated; the President is immediately challenged in courts of law without further ado.”
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This case there by resurrected the ghost of Exparte Matovu, this re-ins tainting the political question
doctrine and the doctrine of separation of powers giving space to the commander to exercise his
Similar to the Maj Gen. Tinyenfuza case, other cases in the Ugandan jurisdiction have upheld the
doctrine of separation of powers, i.e., in the case of Miria Matembe & Nobert Mao v. AG (2005)
that was challenging the passing of the bill of the of the term limits, before it was actually passed law,
the petitioners raised that their cause of action was the interpretation of the likely threat under article
50, court dismissed the case, as it was so immature and it interfered with the independence of the
legislature.
In Uganda Law Society V. AG (2006), where the petitioners challenged the rearrest of Dr. Kizza
Besigye by military officials after he was granted bail by the trial court. The petitioners wanted to
ascertain the standing of the court martial, and the court held that, That the acts of security agents at
the premises of the High Court on the 16 November, 2005 contravened Articles 23(1) (6); 128 (1) (2)
In regard to the autonomy of the judiciary, the case of Ismael Sserugo V. KCC & AG
(Constitutional Petition 14 of 1997) the constitutional court held that, “……….No proceedings shall
lie against the Government by virtue of this section in respect of anything done or omitted to be done
by any person while discharging or purporting to discharge any responsibilities of a judicial nature
vested in him, or any responsibilities which he has in connection with the execution of judicial
process.”
Thus instating the judicial independence, free from trial and interference of their constitutional duties.
In case of Male Mabirizi & Ors v AG (2018), the supreme discredited the Basic structure doctrine, a
theory that makes the judiciary a check to the toxic excess power of the legislature in amending the
law. The supreme court held that even when the basic structure doctrine was binding, it ought not to
break the doctrine of separation of powers and the discretion of the parliament to amend the law under
article 259.
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To contrast the Supreme Court over ruled the decision in CEHURD & Ben Twinomugisha V. AG
(Constitutional Petition 16 of 2011) where Justice Kikonyogo, had held that even when the national
objectives and direct principles of state policy were binding, the court couldn’t order the executive to
fulfill its obligation of provision of health services to women, as it would abuse the doctrine of
separation of powers, and the political question doctrine. A popular decision of the Supreme Court,
killed the Exparte Matovu ghost as it held that the political question doctrine was archaic and in a
The doctrine of separation of powers is important to constitutionalism as it, promotes Public Policy,
Consultation, where before any piece of legislature is passed, a wide range of consultations usually
take place, Public Opinion and The prohibition of retrospective legislation provided for under article
92.
No. 9.
Human rights are the pivot of societies in Uganda. Human rights are illuminated in chapter 4 of the
1995 constitution. Chapter four unveils the basic and fundamental human rights . Among the rights
prescribed in that chapter is Article 37 Right to Culture and Similar rights. ‘Every person has a
right as applicable to belong to enjoy, practice, profess, maintain and promote any culture, cultural
institution, language, tradition, creed, or religion in community with others’ The National Objectives
and Directive Principles of State Policy also recognize the need to uphold cultural values and
practices. Article 29 there of also guarantees a person the right to associate. Nonetheless even when
the above is stated, the right to culture and association are not absolute rights that cannot be deviated
from. Article 37 is subject to Article 2(2) of the supreme law of the land which is the constitution and
32(2) that states that any culture, custom, law and traditions that may be against dignity, welfare or
interest of women or any other marginalized group within the society as prescribed in Article 32(1)
that seeks to undermine their status is prohibited by the constitution. Consequently, it helps us
acknowledge the fact that any custom or law which is inconsistent with the constitution and is against
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the principles of natural justice shall not be conformed with despite the fact that the citizens of this
country have been given freedom to belong to particular cultures and similar rights. If a custom is
deemed repugnant and inconsistent with the laws of the land it shall be declared null and void to the
Uganda being a multi-cultural and multi-tribal state it to an extent applies customary law and also
tries to link it to its written laws and statutes. This explains why to some extent the republic of
Uganda applies customary law within its laws which can be evidenced in the Judicature act section
15 provides that the High court of Uganda will have the right to observe and enforce the observance
of the existing customs and no person shall be denied that right to benefit from an existing custom so
long as it is in conformity with the law and not repugnant to the rules of natural justice and equality.
For the above reasons it is important that Article 37 is closely read with Article 246 of the constitution
that provides for the institution of cultural and traditional leaders in light of when the courts of law
will need guidance on certain customs that may be brought before it by the courts of law by concerned
parties. In the case of Kyobe Julius Luseleka and others v Aida Namalwa where the katikiro of
Buganda was duly contacted and he assigned Kabaale Yusuf to attend court and give evidence
towards customs of a particular clan in Buganda known as the “Ndiga Clan” as he was deemed as a
competent party on matters of that particular clan. Therefore, we can attest that courts are very careful
when treading on matters of culture and will not just assume that they are well acquainted with the
It is trite to note that though these cultural rights have been respected within our nation in conformity
to Article 37 in the exercise of such a right, people must not infringe or interfere with the rights of
others. The most contention over these rights has been expressed tete-a-tete the rights of women and
children. In numerous circumstances, laws have been passed which expressly outlaw certain customs
that do not conform with the times we leave in, that are repugnant to natural justice, moral conscience,
and that are not inconformity with the constitution. In the case of Best Kemigisa v Mable
Komuntale, the repugnant practice of not allowing female widows to inherit their husband’s estate
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even in the light of such property being quite relevant in the welfare and livelihood of the deceased
children. In this case the Tooro Queen mother, Best Kemigisa, won a High Court case in which she
filed a plaint seeking an order for the annulment of a caveat that was placed on the estate of her late
husband Omukama Patrick Olimi Kboyo 111 by princess Mabel Komuntale. Court ruled in her favour
and called such a custom and practice of not allowing women to inherit property as repugnant and
In Bruno Kiwuwa v Ivan Serunkuma & Juliet Namazzi civil suit number 52 of 2006 the plaintiff
challenged the marriage of the defendants, since they were both from the ‘Ndiga’ Baganda clan, and
cannot lawfully by reason of an obtaining custom, contract such as a marriage. The defendants argued
that the customary law that prohibited their marriage was not binding, since they had decided to get
married under the Church law. Court held that there was no reason why the custom in issue, can apply
to customary marriage and yet cannot apply to a marriage under the marriage act, whether under the
marriage act or the Customary Marriage (Registration) Act, the defendant remains of the same tribe
and same clan, the custom has to apply to both cases. Thus court instated declarations that the
intended marriage of the defendants was illegal, null and void, as it contravened the Buganda customs
that prohibited marriage between persons that belong to the same clan, also, before a marriage is
Article 37 also recognizes the tension between the rights of people and the rights of the community. It
is not absolute that one should conform with all customs as their culture subscribes. The right to
associate Article 29 also includes right to disassociate. One has the right to also disassociate himself
or herself from certain Customs. The case that best highlights this right to disassociate is Kyobe
Julius Luseleka & 5 others v Aida Namalwa. In this case there was a contention between the
applicant and the respondent upon where their deceased relatives brother should be laid to rest. The
applicants sought to have their half-brother (deceased) buried at their ancestral home in
kakoola village where their late father had also been laid to rest in conformity with the customs
of the “Ndiga” clan. On the other hand, the respondent, the wife of the deceased who had lived with
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him in Switzerland, insisted that the deceased had confined in her that he wished to be buried at their
matrimonial home in Mukono. It is against such a background that this case was brought to the courts
of law. To better approach the matter court invited a witness a one Mr Kabaale Yusuf who was
deemed to be competent enough in matters of the “Ndiga” clan. When asked and cross examined to
confirm whether burying someone away from their ancestral home is not an abomination. He
hesitantly said that it was not an abomination to be buried away from their ancestral grounds. Though
he hastened to say that it would be good that the customs are followed. In Uganda there is no express
law that determines burial grounds for a person who dies intestate (without a will). However, laws
have been put in place to help courts on how to resolve such matters. The matter was reolved in
favour of the respondent taking into consideration the hierarchy of relationship held with the
deceased. This was backed up by section 201 of the Succession Act Cap 162 “when the deceased
has died intestate, those who are connected with the deceased either by marriage or
consanguinity are entitled to obtain letters of administration of his or her estate and effects of in
the order and according to the above provision” based on the above provision the law recognizes
the rights of the widower and widow as the most entitled persons to apply for letters of administration
of the deceased estate. Brothers and sisters will only come in where there is no widower or widow and
children or where Children are still minors. this case greatly exemplified that the right to cultural
association is not absolute and one has the option of disassociating him or herself from a custom if no
No. 1
ISSUES
1. Whether the CDDF has the power to summon parliament for an emergency session to debate
a bill?
2. Whether the creation of an offence under the Abusive Social and Other Media Prevention Act
and its punishments there under is in violation of the rights enshrined under chapter four of
the constitution?
3. Whether the CDDF has the power as daughter of the president to assume the president’s
4. Whether the trial of the culprits by a military tribunal is in violation of the human rights
RESOLVED ISSUES
ISSUE 1
Under Chapter 4 of the constitution, Article 20 states that the fundamental rights and freedoms of the
individual are inherent and not granted by the state. This was further upheld by Justice Lugakingira
in the case of Christopher Mtikila v Attorney of Tanzania (1996)1 CHRLD II They inhere in a
person as reason of their birth. The rights enshrined are to be respected, upheld and promoted by the
organs and agencies of government and all persons. Under the impugned law, an offence called
“defamation of members of the first family” whose punishment is 10 years’ imprisonment, a fine and
deportation from one’s place of birth. Furthermore, the culprit is denied legal representation, the right
to bail, medical attention and denied the right to appeal. Upon perusal of the above facts, this is in
clear violation of the constitutional rights enshrined under Article 28, which guarantees the right to a
fair hearing. Article 28(d) guarantees the right to legal representation, which the impugned law above
restricts. Article 23(6) provides that where a person is arrested in respect of a criminal offence, the
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person is entitled to apply to the court to be released on bail and the court may grant that person bail
on such conditions the court considers reasonable. Article 23(2) provides that a person arrested,
restricted or detained shall be kept in a place authorised by law. Mukwasi is deported to Rukwanzi
near the border of DRC. The constitution under Article 2 of the constitution is the supreme law of the
land and any other law in conflict with it is void. It is binding on all people. Its primary purpose is
upholding and uplifting the Ugandan people and their rights. The denial of fundamental rights by the
ISSUE 2
Chapter six of the legislature, under Article 77 establishes the parliament of Uganda. Whose
functions under Article 79 include the making of laws on any matter for the peace, order,
development and good governance of Uganda. Article 82 of the constitution establishes the office of
the speaker of parliament and under Article 82(4) no business in parliament shall be transacted in
parliament without the speaker. Clearly the speaker is the head of parliamentary business and the
CDDF cannot in any way interfere with the affairs of parliament as that would undermine the rule of
ISSUE 3
Article 98 of the Constitution of Uganda establishes the office of the president of Uganda. The Article
declares that the president shall be the Head of State, Head of Government and Commander-in-Chief
of the Uganda People’s Defence Forces. Article 99 of the constitution then goes ahead vest all
executive authority of Uganda in the president to be exercised in accordance with the constitution and
the laws of Uganda. Article 99(4) provides that subject to the constitution, the functions of the
president may be exercised by the president either directly or through officers subordinate to the
president. Article 110 of the constitution states inter alia that the president may in consultation with
cabinet with the cabinet, by proclamation, declare that a state of emergency exists in Uganda. It
further lays down the circumstances under which the state of emergency may be called, namely;
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where Uganda is threatened by external aggression, in which the economic life of the country or that
part is threatened by internal insurgency or natural disaster, or which render necessary the taking of
measures which are required for securing the public safety, the defence of Uganda and the
maintenance of public order and supplies and services essential to the life of the community. Article
209 spells out the functions of the defence forces which include to preserve and defend the
sovereignty and territorial integrity of Uganda, to cooperate with the civilian authority in emergency
situations and in cases of natural disasters, to foster harmony and understanding between the defence
forces and civilians and to engage in productive activities for the development of Uganda.
Clearly from the above provisions of the constitution, the CDDF has no power assume the powers of
ISSUE 4
Article 28(1) provides that in the determination of civil rights and obligations or any criminal charge,
a person shall be entitled to, inter alia, a hearing before an independent and impartial court or tribunal
established by law. Under the impugned law, the offenders are to be tried by a military tribunal
comprised of UPDF officers and the right to appeal is denied. Clearly the military tribunal is not a
competent court as provided for under Article 129(1) which lists the courts of judicature namely; the
supreme court, court of appeal, the high court and other subordinate courts as parliament may by law
establish. In the case of Joseph Tumushabe and Anor v Attorney General Constitutional Petition
No. 6 of 2004. where civilians were being tried in the General Court Martial and denied bail, the
Constitutional court held that it was unconstitutional to try civilians in the court martial since it was
not a competent court in which to try civilians. This was further held in the case of Michael
Kabaziguruka v Attorney General Constitutional Petition No. 45 of 2016; where Justice Kenneth
Kakuru emphasized that civilians could not be tried under the General Court Martial since it was not
an impartial court since its membership was determined by the president, meaning it was subject to
direction yet courts of Judicature under Article 128 are meant to be independent.