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United Organisation for Batwa Development in Uganda( UOBU) and 11 Others v Attorney General and 2 Others (Constitutional Petition No. 3 of 2011)

Constitutional Court · [2021] UGCC 22 · 2021 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition brought under Article 137(3) and (4) of the 1995 Constitution seeking declarations and redress
Decision
Petition allowed to the extent that affirmative action is required for the Batwa; matter referred to the High Court under Article 137(4)(b) to determine appropriate affirmative action measures and redress; costs to the petitioners

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Holding

The Court held that allegations of pure human rights violations and the claim that the State must recognise the Batwa as an 'indigenous people' under international law are matters of enforcement (Article 50), not constitutional interpretation, and fell outside its jurisdiction. However, questions concerning affirmative action under Article 32(1) were implicit and justiciable. On the evidence the Batwa had historically inhabited the lands now comprising Echuya Forest Reserve, Bwindi and Mgahinga National Parks, were evicted without adequate compensation, and are a group marginalised 'by history' within Article 32(1) requiring affirmative action. The petition was allowed to that extent and, evidence being insufficient to fix the measures, referred to the High Court under Article 137(4)(b). Costs to the petitioners.

Facts

The Batwa, recognised under the 1995 Constitution as indigenous people who have lived in Uganda since at least 1926, number about 6,000, mostly in Kanungu, Kisoro and Kabale districts. They claimed the lands now comprising Echuya Central Forest Reserve, Bwindi Impenetrable National Park and Mgahinga Gorilla National Park were their ancestral, customarily owned lands. From the 1930s successive colonial and post-independence governments gazetted these areas as forest reserves, game reserves and ultimately, in 1991, national parks, progressively excluding and evicting the Batwa. Expert affidavits (Dr Chris Kidd, Dr Liz Alden Wily, Dr Jerome Lewis) and colonial archival correspondence showed the Batwa were recognised as forest-dwelling inhabitants of the area as early as 1929. The petitioners' affidavits described forceful eviction, loss of hunting, gathering and worship sites, and resettlement as landless squatters dependent on NGOs. The respondents contended the land was public land, that the Batwa were mere encroachers or migrants with only user rights, and that some compensation was paid in 1991 for structures and crops, not land. The Court found the petitioners' evidence more compelling and that no adequate compensation was paid.

Issues

  1. Whether the Petition raises any questions of constitutional interpretation such that the Constitutional Court has jurisdiction to entertain it.
  2. Whether the respondents' actions of compulsorily depriving the Batwa of their interest in or right over the relevant lands is inconsistent with or in contravention of Article 26 of the Constitution.
  3. Whether the actions of the respondents in denying the Batwa access to their ancestral lands is inconsistent with or in contravention of Articles 29(1)(c), 37 and 45 of the Constitution.
  4. Whether the failure of the 1st respondent to recognise the Batwa as an indigenous people and ethnic minority is inconsistent with or in contravention of Articles 20(2), 36, 45 and 287 of the Constitution.
  5. Whether the petitioners are entitled to the declarations and other reliefs prayed for.

Orders

  • The Petition is allowed to the extent that affirmative action measures should be taken in favour of the Batwa people.
  • Declaration that the ancestors of the present Batwa inhabited, had an interest in and/or owned, in accordance with their customs, the land on which Echuya Forest Reserve, Mgahinga Gorilla National Park and Bwindi Impenetrable National Park are situated, until their eviction around 1991 to 1996.
  • Declaration that no adequate compensation was paid to the Batwa for loss of their land, rendering them landless, destitute and marginalised and requiring affirmative action under Article 32(1).
  • The matter is referred to the High Court under Article 137(4)(b) to investigate and determine the appropriate affirmative action measures and redress.
  • The petitioners are awarded costs against the respondents, jointly and/or severally.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Interpretation under Article 137 distinguished from enforcement of rights
The Constitutional Court's jurisdiction under Article 137 is confined to petitions whose resolution depends on the interpretation of a provision of the Constitution; mere allegations that constitutional rights have been violated are matters of enforcement cognisable by a competent court under Article 50 and do not invoke the Court's jurisdiction.
Statutory Interpretation — Constitutional interpretation — No power to read words into an explicit provision by reference to international law
In interpreting the Constitution the Court gives the words their plain and ordinary meaning; it may refer to an international treaty or declaration to explicate a constitutional provision but may not rely on international law to read additional words, such as a concept of 'indigenous peoples', into an explicit provision, as that would usurp the legislative role of Parliament.
Constitutional Law — Affirmative action under Article 32(1) — Meaning and scope
Affirmative action under Article 32(1) is remedial action required to rectify the effects of past discrimination or historic injustice in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom; the appropriate measures depend on the facts of each case.
Human Rights — Marginalised groups — Eviction of indigenous people from ancestral land without compensation as a marginalisation 'created by history'
Where an indigenous community has been evicted from land its ancestors inhabited for centuries, without consent and without adequate compensation, and thereby rendered landless and destitute, it is a group marginalised 'by any other reason created by history' within Article 32(1), entitling it to affirmative action by the State.
Constitutional Law — Redress — Reference to the High Court under Article 137(4)(b) where affidavit evidence is insufficient to fix relief
Where the Constitutional Court determines a petition in the petitioner's favour but the affidavit evidence is insufficient to determine the appropriate redress, the Court may, under Article 137(4)(b), refer the matter to the High Court to investigate and determine the appropriate redress.

Legislation cited (17)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.32(1)
  • Constitution of Uganda 1995 art.26
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.20(2)
  • Constitution of Uganda 1995 art.36
  • Constitution of Uganda 1995 art.45
  • Constitution of Uganda 1995 art.287
  • Constitution of Uganda 1995 art.29(1)(c)
  • Constitution of Uganda 1995 art.37
  • Limitation Act Cap. 80 s.5
  • Public Lands Act 1962 s.11(1)
  • Public Lands Act 1962 s.1(1)
  • Land Reform Decree 1975 s.1(1)
  • Uganda Wildlife Act Cap. 200
  • National Forestry and Tree Planting Act 2003

Cases cited (18)

  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Raphael Baku and Another v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Alenyo v Attorney General and Others (Constitutional Petition No. 5 of 2000)
  • Joyce Nakacwa v Attorney General and Others (Constitutional Petition No. 2 of 2001)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Advocates for Natural Resources Governance and Development and 2 Others v Attorney General and Another (Constitutional Petition No. 40 of 2013)
  • Human Rights Network of Uganda and Others v Attorney General (Constitutional Petition No. 56 of 2013)
  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586
  • Mabo v Queensland (No 2) [1992] HCA 23
  • Sesana v Attorney General [2006] BLR 1
  • Richtersveld Community v Alexkor Ltd and Another [2003] BCLR 583
  • R v Van der Peet [1996] 2 SCR 507
  • R v Kapp [2008] 2 SCR 483
  • Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, Communication 276/2003
  • African Commission on Human and Peoples' Rights v Kenya (Ogiek Case), Application No. 006 of 2012
  • Director of Public Prosecutions v Daudi Pete (Criminal Appeal No. 28 of 1990)
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