Case Number REFERENCE NO. 6 OF 2019

Mr. Male H. Mabirizi K. Kiwanuka (the Applicant’), a self-styled civically active Ugandan that is ordinarily resident in Uganda, lodged this Reference under Article 30 of the Treaty for the Establishment of the East African Community (the Treaty’). He contests the legality of a host of actions, directives and decisions of the Executive, Legislative and Judicial branches of the Government of the Republic of Uganda (‘the Respondent State’) for their role in the
conceptualization, processing and validation of Uganda’s Constitutional (Amendment) Act of 2018.

The Reference is supported by an affidavit deposed by the Applicant and dated 3rd May 2019, as well as two affidavits in rejoinder to the Respondent’s supplementary affidavits, both of which are also deposed by the Applicant and are each dated 2nd December 2019.
The Applicant did also file a Reply to the Respondent’s Answer to the Reference dated 25th July 2019, along with a supporting affidavit of the same date deposed by himself.

The Reference is opposed by the Attorney General of the Republic of Uganda (‘the Respondent’), a self-defining office that was sued in its representative capacity as Principal Legal Advisor to the Respondent State. In its Answer to the Reference, the said office denies any breach of the Treaty in the terms proposed by the Applicant and contests the justiciability of some of the matters raised in the Reference. The Answer to the Reference is supported by the affidavit of Mr. George Kalemera dated 21st June 2019, as well as supplementary affidavits deposed by the same deponent and Mr. Godfrey Anguandia Opifeni, both of which are dated 28th November 2019.

Date filed
Treaty Article

First Instance Judgment

VerdictThis judgment accentuates the constitutional provision that a bill in the Republic of Uganda would ordinarily become law once passed by Parliament and assented to by the President. Therefore, the Constitutional Amendment Bill No. 2 of 2017 stood duly enacted into the Constitutional (Amendment) Act of 2018 upon securing presidential assent. The process leading to the enactment of that law, as well as the Constitutional Court's judgment in respect thereof are adjudged to have been time-barred, having fallen prey to the two-month time limit prescribed in Article 30(2) of the Treaty. However, the Supreme Court's judgment was properly placed before the Court, the Reference having been lodged well within that time frame. In so far as this Court is clothed with exclusive jurisdiction over the interpretation of the Treaty, the notion that the Applicant could have (but did not) raise the matters in contention in the Reference before the domestic courts in Uganda is untenable. Given that the said issues had never been conclusively adjudicated by the Court, the defence of res judicata is unsustainable and the challenge to the Supreme Court's decision was adjudged to represent a live dispute. Thus, it being trite law that nation states can be held internationally responsible for the wrongful actions of their judicial organs, the interrogation of the impugned Supreme Court decision to determine its consistency with the Treaty is well within this Court's jurisdiction. The Applicant bore the legal burden to establish his case as against the Respondent to the required standard. The standard of proof applicable to challenges to apex courts' judicial decisions is 'fully conclusive evidence' that demonstrates a clear and notorious injustice that is blatantly evident 'at a mere glance'. The Court neither impeached the conduct of the Uganda Supreme Court from a judicial ethics viewpoint; nor adjudged the judicial process and result in Constitutional Appeal No. 2 of 2018 to have been inconsistent with the rule of law principle enshrined in the Treaty or the Applicant's right to a fair hearing. The upshot of the Court's determination of this case is that the Reference is hereby dismissed with costs to the Respondent. It is so ordered.
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Date deliveredSeptember 30, 2020

Appeal Judgment

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Date delivered