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Martin Sempa and 2 Others v Hon. Fox Odoi-Oywelowo and 21 Others (Consolidated Constitutional Application 15 of 2023; Constitutional Application 29 of 2023; Constitutional Applicat

Constitutional Court · 946e5e84bf76a6db Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated applications to be joined as co-respondents in constitutional petitions challenging the Anti-Homosexuality Act, 2023
Decision
Applications granted; applicants joined as co-respondents in the consolidated petitions

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Holding

The Constitutional Court granted the consolidated applications and joined the applicants as co-respondents in petitions challenging the Anti-Homosexuality Act, 2023. Modifying the strict 'necessary party' test under Order 1 Rule 10(2) of the Civil Procedure Rules through Rule 23(1) of the Constitutional Court (Petitions and References) Rules, the court drew on comparative practice (Kenya's interested-party rules and the East African Court of Justice's intervener procedure) to admit non-parties who, while partisan, possess relevant expertise. The applicants' knowledge of values, morality and family issues was relevant under article 126(1) of the Constitution, and their joinder would assist the court to effectually adjudicate the issues. Each party was to bear its own costs.

Facts

Pastor Martin Sempa filed three applications, and Eng. Stephen Langa together with Family Life Network Ltd filed a separate application, each seeking to be joined as a respondent in constitutional petitions challenging the constitutionality of the Anti-Homosexuality Act, 2023. The applicants asserted a legitimate interest in defending the Act, wishing to advance perspectives of traditional African values, family values and Christian faith, and to reinforce the Attorney General. They adduced affidavit evidence of their training, research, writings and long experience on morality, sexuality and family matters. The respondents opposed the applications, contending the applicants lacked locus standi and legal interest, that the Attorney General as statutory respondent needed no reinforcement, that joinder would delay disposal, and that the issues concerned constitutionality rather than values or morality. The court consolidated the four applications, which raised similar questions of law and arose from petitions already consolidated by consent.

Issues

  1. Whether the applicants qualified to be joined as co-respondents in the consolidated petitions challenging the constitutionality of the Anti-Homosexuality Act, 2023.
  2. Whether persons with a partisan interest and relevant expertise may be joined to public interest constitutional litigation, and on what criteria.
  3. Whether the perspectives the applicants sought to advance were relevant to the court's resolution of the constitutional issues.

Orders

  • Constitutional Application Nos. CCA-0029-2023, CCA-0033-2023, CCA-0015-2023 and CCA-43-2023 are granted.
  • The applicants are joined in the petitions as co-respondents.
  • Each party shall bear its own costs arising out of or incidental to the applications.

Key headnotes

Civil Procedure — Joinder of Parties — Necessary Party Under Order 1 Rule 10(2) CPR
A non-party may be joined under Order 1 Rule 10(2) of the Civil Procedure Rules only as a necessary party, namely where the orders sought would legally affect that person's interests or where a defendant cannot effectually set up its desired defence unless that person is joined.
Constitutional Law — Public Interest Litigation — Modification of Joinder Rules in Constitutional Petitions
Because decisions in constitutional petitions are judgments in rem binding on all persons, the strict 'necessary party' test under Order 1 Rule 10(2) CPR may be modified, pursuant to Rule 23(1) of the Constitutional Court (Petitions and References) Rules, 2005, as necessary in the interest of justice and expedition.
Constitutional Law — Direct Participation — Distinction Between Amicus Curiae, Interested Party and Intervener
A distinction exists between an amicus curiae, whose interest is fidelity to the law and who offers neutral assistance, and an interested party or intervener, who has a partisan stake in the outcome and may advocate a point of view in support of one party.
Constitutional Law — Joinder of Partisan Experts — Criteria for Intervention
A partisan non-party may be joined to constitutional proceedings where it has a direct and immediate interest in the litigation, joinder will not enlarge the issues, the reasons for intervention outweigh any opposition, and the party possesses relevant knowledge and expertise that will assist the court.
Constitutional Law — Exercise of Judicial Power — Values, Norms and Aspirations Under Article 126(1)
Under article 126(1) of the Constitution, the court must exercise judicial power in conformity with the law and with the values, norms and aspirations of the people, so perspectives on societal values are relevant considerations in resolving constitutional issues.

Legislation cited (12)

  • Constitution of Uganda art.119(4)(c)
  • Constitution of Uganda art.250
  • Constitution of Uganda art.126(1)
  • Civil Procedure Act Cap. 71 s.98
  • Civil Procedure Rules S.I. No. 71-1 Order 1 Rule 10(2)
  • Civil Procedure Rules S.I. No. 71-1 Order 52 Rules 1, 2 and 3
  • Constitutional Court (Petitions and References) Rules, 2005 (S.I. No. 91 of 2005) Rule 5(2)
  • Constitutional Court (Petitions and References) Rules, 2005 (S.I. No. 91 of 2005) Rule 23(1)
  • Constitutional Court (Petitions and References) Rules, 2005 (S.I. No. 91 of 2005) Rule 23
  • Judicature (Amicus Curiae) Rules, 2022
  • Treaty Establishing the East African Community art.40
  • East African Court of Justice Rules of Procedure, 2019 Rule 59

Cases cited (6)

  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Civil Appeal No. 9 of 1998)
  • Amon v Raphael Tuck & Sons Ltd (1956) 1 All ER 273
  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others (Petition No. 12 of 2013) [2015] eKLR
  • UHAI EASHRI & Another v Human Rights Awareness & Promotion Forum (HRAPF) & Another (Consolidated Applications No. 20 & 21 of 2014)
  • Mukasa Mbidde v Attorney General of Burundi & Another (EACJ Application No. 6 of 2018)
  • Julie Folcik v Orange County Register of Voters & Another, Superior Court of the State of California, Case No. 30-2012-00553905
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.