Expanding the grounds of non-discrimination under Article 21 of the Ugandan Constitution is a critical discussion. Article 21 provides that all persons are equal before and under the law in every other respect and that no person shall be discriminated against on the grounds of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or economic standing, political opinion or disability.
The big question is whether these grounds for non-discrimination are exhaustive or whether they can be expanded. Unfortunately, as we demonstrate below, Ugandan courts have floundered in providing a definitive answer to this question.
Some principles of constitutional interpretation
To start, we will provide an overview of the nature of a constitution and some basic principles of constitutional interpretation. A constitution is the fundamental law of a nation embodying the norms, values and aspirations of its citizens. Ideally, a constitution is best written after extensive national consultation to allow the citizens to choose the norms, values and aspirations that they want to be governed by. As such, constitutions are designed to endure and are not frequently written or amended.
Certain key principles of constitutional interpretations provide the mechanisms by which a constitution can continue to grow, develop and adapt to the changing demands of society, reserving amendments to the constitution for only the most critical issues.
Here are a few principles:
- A constitutional provision containing a fundamental human right should be interpreted as a permanent provision intended to cater for all times to come and therefore should be given dynamic, progressive, liberal and flexible interpretation keeping in view the ideals of the people. (Okello John Livingstone v AG).
- Provisions relating to fundamental human rights and freedoms should be given a purposive and generous interpretation in such a way as to secure maximum enjoyment of the rights and freedoms guaranteed. (AG v Major General David Tinyefuza).
- The constitution is the supreme law of the land and it is meant not only to serve this generation but also generations yet unborn. It cannot be allowed to become a lifeless museum piece; the Courts must breathe life into it from time to time as the occasion may arise to ensure the healthy growth of the State through it. (Unity Dow v AG).
- The entire Constitution must be read together as an integral whole, with no particular provision destroying the other, but each sustaining the other. This is the rule of harmony, completeness and exhaustiveness. (Paul Kawanga Ssemwogerere v AG).
We will now further explore the court's interpretation of Article 21.
The court's interpretation of Article 21 (Equality and Freedom from Discrimination)
In Madrama Izama v AG (“Izama”), the contention was that a provision of the Pensions Act was discriminatory on the grounds of age and therefore contrary to Article 21. The Constitutional Court held that age was not a category for consideration of discrimination of a person under Article 21(2). The Supreme Court affirmed this position saying age was not one of the parameters for determination of what constitutes discrimination under Article 21.
The Supreme Court did not consider Article 45 (Human Rights and Freedoms Additional to Other Rights). This article provides that the rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this chapter shall not be regarded as excluding others not specifically mentioned. This provision should therefore have been the ‘open sesame' to unlock the list in Article 21(2), if indeed it was restricted.
In Uganda Law Society v AG, the Constitutional Court utilised Article 45 to expand the grounds for non-discrimination. The petitioners challenged a provision of the Stamp Duty (Amendment) Act, arguing it as discriminatory against private practitioners in legal practice on grounds of social and economic standing. The Court determined that Article 45 indicates that the list in Article 21 is not exhaustive of potential discriminative practices and that it should not be interpreted to mean that constitutional prohibition of discrimination consists merely of the categories listed in Article 21(3). The Court further stated that the right to be free from discrimination will continue to evolve on a case-by-case basis as jurisprudence under Article 21 grows. Additionally, the Constitutional Court also observed that Article 21(2) and (3) should be examined based on the exemptions provided for in Article 21(4) which allows Parliament to enact laws that appear to be discriminatory. However, despite it being cited, the Constitutional Court did not consider the Izama decision.
The decisions of the Supreme Court are binding on the lower courts as a matter of our Constitution and the principles of common law. The courts are bound to follow previously decided cases where the facts are of sufficient similarity and to stand by the decided cases (stare decisis). The Constitutional Court was therefore expected to give reasons for its departure from Izama and their failure to do so makes their decision contrary to the law (per incuriam).
In Hon. Fox Odoi v AG, the petitioners challenged the Anti-Homosexuality Act as discriminatory on the grounds of sexual orientation among other grounds. The Constitutional Court stated that “it is crystal clear that there was a deliberate omission of sexual orientation as a parameter on the basis of which discrimination could be inferred”. Furthermore, it stated that interpreting the word ‘sex' extensively to comprise of sexual orientation would be inconsistent with the rule of harmony and the literal interpretation of Article 21.
However, the Constitutional Court did not refer to any of the previous decisions on the interpretation of Article 21 rendering their decision also per incuriam nor did it consider the principle of giving a wide and generous interpretation to provisions on human rights.
In Muslim Centre for Justice and Law v AG, the petitioners challenged the law exempting government vehicles from third-party risk insurance on grounds that it contravened Article 21. The Constitutional Court dismissed the petition on substantive grounds without addressing the above contests on Article 21.
Thus, it seems evident that Ugandan courts have been inconsistent in their interpretation of Article 21. The guiding principles for interpreting the Constitution require that it be read purposively, liberally and broadly to expand rather than restrict rights and freedoms, how would the Constitutional Court ever have to debate whether Article 21 is an open or closed list of grounds of non-discrimination? To do so would be to freeze the Constitution as of 1995, the year of its birth, and the context in which it was made. It would be to deny the possibility that post-1995, discrimination may arise from a new cause.
The core principle of Article 21 is the freedom from discrimination, which can only be qualified if such discrimination is demonstrably justifiable in a free and democratic society. This is the essence of Article 21, rather than whether the list of grounds is open or closed.
Lessons from other jurisdictions
Kenya
The Kenyan Constitution in Article 27(4) (Equality and Freedom from Discrimination) provides that the State shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, duress, language or birth.
The Kenyan provision is framed in inclusive terms and contains more grounds than appear in its Ugandan counterpart namely pregnancy, marital status, health status, conscience, duress and language.
In NGOs Coordination Board v Eric Gatari, the contention was whether the refusal to reserve a name of an intended non-governmental organisation that aimed to address the violence and human rights abuses suffered by the LGBTQI Community amounted to discrimination.The High Court and Court of Appeal held that the refusal of the NGO Board to register the NGO amounted to discrimination. The Supreme Court of Kenya held that the word ‘including' in Article 27(4) of the Kenyan Constitution meant that the listed grounds for non-discrimination were not exhaustive, but only illustrative and would also comprise freedom from discrimination based on a person's sexual orientation.
South Africa
The South African Constitution in Section 9(3) (Equality) provides that the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. This provision like the Kenya one is inclusive, meaning that the listed grounds for non-discrimination are non-exhaustive.
Tanzania
The Tanzanian Constitution in Article 13 (Equality before the law) is worded rather expansively. It states that to “discriminate” means to satisfy the needs, rights or other requirements of different persons based on their nationality, tribe, place of origin, political opinion, colour, religion, sex or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications.
It is not clear whether this language on the grounds of non-discrimination is to be construed as exhaustive or simply descriptive.
Namibia
The Namibian Constitution in Article 10 (Equality and Freedom from Discrimination) provides that no persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.
In Friedel Laurentius Dausab v Minister of Justice, the claim was that the offences of sodomy and unnatural sex were discriminatory against male persons and therefore unconstitutional. It was conceded that Article 10 did not make express reference to ‘sexual orientation' as a ground of discrimination and that the Namibian Supreme Court had declined to address this question in a previous case.
However, the court cited a string of Namibian cases that had long accepted that Article 10 was not absolute, despite its non-inclusive phrasing and the right to equal protection takes cognizance of ‘intelligible differentia'. The court concluded that the omission of a ground in Article 10 was not a license for the law to discriminate on that ground.
Expansion of grounds for non-discrimination by statute
While the Ugandan courts have deliberated on whether the grounds of non-discrimination can be expanded or not, Parliament appears to take the view that it does hold the mandate to expand the grounds of non-discrimination through legislation.
The Employment Act introduces marital and HIV status while the Equal Opportunities Commission Act includes health status as a new ground for non-discrimination, none of which appear in Article 21. Enacted in 2006 and 2007 respectively, more than a decade after our Constitution was adopted, it is clear that our national experience with the HIV pandemic informed these later laws.
Given that the courts have interpreted the grounds of non-discrimination in Article 21 as a closed list, and to the extent that Parliament has enacted laws with new grounds for non-discrimination, it is arguable that the Equal Opportunities Commission Act and the Employment Act amend Article 21, raising questions about their constitutionality.
It can be argued that these two laws are made under Article 21(4)(a) of the Constitution which empowers Parliament to make laws as necessary for implementing policies and programmes aimed at redressing social, economic, educational or other imbalances in society. Additionally, they could fall under Article 21(4)(c), which allows for any matter deemed acceptable and demonstrably justifiable in a free and democratic society. It is certainly plausible that Parliament deemed it necessary to enact a law to stem the rising stigma against persons with HIV.
It is noteworthy that while Parliament may introduce new grounds for non-discrimination, the Constitutional Court regards itself as restricted to only those grounds in Article 21. Furthermore, grounds of non-discrimination introduced by statute are typically limited to the specific contexts of their parent law. For instance, marital status in the Employment Act would not deter discrimination in the context of awarding stalls in a new market.
Conclusion
The Ugandan courts, with a single exception, have generally focused on whether the grounds for non-discrimination in Article 21(3) are exhaustive or not, an approach which is not supported by the language of the Constitution itself nor by principles of interpretation of the Constitution. As we have seen from the experiences of other countries, the primary goal of Article 21 is to eliminate discrimination. As discussed earlier in this article, a constitution should reflect the norms, values and aspirations of all citizens. To fulfil the aspirations of Ugandans for equality and freedom from discrimination in all its nefarious forms, the courts should embrace the purposive and expansive principles of constitutional interpretation in Article 21. This approach would ensure that the principles of equality and non-discrimination are upheld not only for the present but also for generations unborn, as adopting the inclusive interpretation seen in Kenya, South Africa, Tanzania and Namibia ensures comprehensive equality and protection of all individuals.
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