Centre for Domestic Violence Prevention and Others v Attorney General of Uganda (Constitutional Petition No. 13 of 2014)

Constitutional Court · [2021] UGCC 20 · 2021 Petition Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137 challenging the constitutionality of provisions of the Anti-Pornography Act 2014

Decision

Petition allowed in part; sections 2, 11, 13 and 15 of the Anti-Pornography Act 2014 declared null and void.

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court held that sections 2 and 13 of the Anti-Pornography Act 2014 offend the principle of legality (Article 28(12)): the terms 'indecent show' and 'by whatever means' in the definition of pornography are unconstitutionally vague. The criminalisation of pornography abridges the freedom of expression and, because the respondent neither identified a legislative objective nor showed rational connection or minimal impairment, the limitation was not justified under Article 43. Sections 11 and 15, conferring search and seizure powers premised on the unconstitutional offence, equally fail. Issues alleging discrimination and breach of international obligations were rejected for lack of properly adduced evidence. Sections 2, 11, 13 and 15 were declared null and void.

Facts

Civil society organisations and individual activists petitioned the Constitutional Court challenging the Anti-Pornography Act 2014. They contended that the definition of 'pornography' in section 2 and the prohibition in section 13 used vague and subjective terms ('indecent show', 'by whatever means', 'stimulated explicit sexual activities', 'sexual parts', 'primarily sexual excitement'), criminalising conduct without sufficient certainty. They argued the Act's enforcement powers in sections 11 and 15, allowing inspection, seizure and arrest, interfered with personal liberty, privacy and property. The petitioners also said the Act's effect facilitated public undressing and detention of women perceived as indecently dressed, though they conceded the State did not participate. The respondent denied inconsistency and argued the matters were enforcement issues for the High Court under Article 50, and that evidence of the incidents was hearsay not adduced by affidavit.

Issues

Whether sections 2 and 13(2) of the Anti-Pornography Act 2014 are inconsistent with the right to a fair hearing and the principle of legality under Articles 2(1) & (2), 28(12) and 44(c) of the Constitution.
Whether sections 2 and 13 of the Anti-Pornography Act 2014 are inconsistent with the right to equality before the law and freedom from discrimination.
Whether sections 11(1) and 15(1) & (2) of the Anti-Pornography Act 2014 are inconsistent with the rights to personal liberty, privacy and property under Articles 23(1), 26 and 27 of the Constitution.
Whether the spirit of the Anti-Pornography Act 2014 is inconsistent with the Government's duty to respect, protect and promote the rights and freedoms of individuals and groups.
Whether the Anti-Pornography Act 2014 is inconsistent with Uganda's obligations under international human rights instruments it has ratified or acceded to.
Whether the petitioners are entitled to the declarations and other reliefs prayed for.

Orders

Sections 2 and 13 of the Anti-Pornography Act 2014 are inconsistent with or in contravention of Articles 2(1) & (2), 28(12) and 29(1)(a) of the Constitution.
Sections 11(1) and 15 of the Anti-Pornography Act are inconsistent with Articles 23, 26 and 27 of the Constitution.
Sections 2, 11, 13 and 15 of the Anti-Pornography Act are declared null and void for inconsistency with the Constitution.
The petition is allowed in part and the petitioners are granted one half of their costs.

Key headnotes

Constitutional Law — Principle of Legality — Article 28(12) — Void for Vagueness

A criminal offence need not define every word it uses, but the prohibited conduct must be ascertainable with sufficient precision; where terms such as 'indecent show' and 'by whatever means' provide no measurable threshold, the definition is unconstitutionally vague and void.

Constitutional Law — Limitation of Rights — Article 43 — Rationality Test and Burden of Justification

Once a prima facie infringement of a fundamental right is shown, the burden shifts to the party defending the limitation to prove a sufficiently important legislative objective, a rational connection between the measure and the objective, and that the impairment is no more than necessary.

Human Rights — Freedom of Expression — Unjustified Limitation

Criminalising pornography abridges the fundamental freedom of expression, and where no legislative objective for the prohibition can be discerned and no rational connection or minimal impairment is demonstrated, the limitation is not justified under Article 43.

Evidence — Constitutional Petitions — Affidavit Evidence and Judicial Notice

In a constitutional petition all evidence must be adduced by affidavit under Rule 12 of the Constitutional Court (Petitions and References) Rules 2005; materials merely annexed to written submissions amount to adducing evidence from the bar and cannot ground a finding nor be admitted under the guise of judicial notice.

Constitutional Law — Jurisdiction — Article 137 — Requirement of Constitutional Interpretation

The jurisdiction of the Constitutional Court under Article 137 is engaged only where the petition shows on its face that interpretation of a constitutional provision is required in relation to an impugned law, act or omission; a bare allegation that a constitutional provision has been violated is insufficient.

Constitutional Law — Consequential Invalidity — Powers Premised on an Unconstitutional Provision

Enforcement powers conferred by statute that are premised upon and exist to enforce an offence-creating provision already found unconstitutional cannot themselves survive and are equally void.

Legislation cited (17)

Anti-Pornography Act 2014 s.2
Anti-Pornography Act 2014 s.7
Anti-Pornography Act 2014 s.11(1)
Anti-Pornography Act 2014 s.13
Anti-Pornography Act 2014 s.15(1) & (2)
Constitution of Uganda 1995 art.2
Constitution of Uganda 1995 art.28(12)
Constitution of Uganda 1995 art.43
Constitution of Uganda 1995 art.44(c)
Constitution of Uganda 1995 art.137
Constitution of Uganda 1995 art.26
Constitution of Uganda 1995 art.27
Evidence Act s.2(1)
Evidence Act s.55
Evidence Act s.56(1)
Penal Code Act s.166
Constitutional Court (Petitions and References) Rules 2005 r.12

Cases cited (21)

[1994] UGSC 4
Gbaniyi Osafile and John Emeri v Paul Odi and Okwumaso Nwale / SC/149/1987
[2003] UGSC 3
[1999] UGSC 23
[1997] UGCC 10
[1999] UGSC 7
Grayned v City of Rockford, 408 U.S 1004 (1972)
[2004] UGCC 1
[2000] UGCC 5
[2009] UGSC 6
Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
[2010] UGCC 1
Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
Interfreight Forwarders v East African Development Bank 1990-1994 EA 117
Canadian Pacific Ltd v R 1956 1 LRC
[2000] UGCC 3
[1997] UGCC 7
[2004] UGSC 1
[2017] UGSC 11
[2020] UGCC 6
Mark Gova Chavunduka & Others v Minister of Home Affairs & Anor (S.C. 36 of 2000) [2000] JOL 6540 (ZS)

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.