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United Organisation for Batwa Development In Uganda ND 11 Others v Attorney General and 2 Others. (Constitutional Petition No. 3 of 2013)

Constitutional Court · [2021] UGCC 25 · 2021 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) and (4) of the 1995 Constitution seeking declarations and redress
Decision
Petition allowed in part; matter referred to the High Court under Article 137(4)(b) to determine appropriate affirmative action measures and redress

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Holding

The Court held it had no jurisdiction over the petition's human rights enforcement claims (rights to property, equality, culture), which belong in the High Court under Article 50, and that it could not read the international-law concept of 'indigenous peoples' into the Constitution. However, it found that implicit in the petition were questions of affirmative action under Article 32(1). On the evidence, the Batwa had inhabited the Echuya, Bwindi and Mgahinga forest lands before colonial rule, were evicted between the 1930s and 1991 to create protected areas without adequate compensation, and are now a marginalised, landless people. The petition was allowed to the extent that affirmative action measures must be taken; the matter was referred to the High Court under Article 137(4)(b) to determine appropriate redress.

Facts

The Batwa, an indigenous forest-dwelling people of about 6,000 living in Kanungu, Kisoro and Kabale districts of south-western Uganda, inhabited the forest lands on which the present-day Echuya Central Forest Reserve, Bwindi Impenetrable National Park and Mgahinga Gorilla National Park are situated, occupying them as hunter-gatherers since long before the British Protectorate. Beginning with the colonial government in the 1930s (Mgahinga gorilla sanctuary 1930; Bwindi Crown Forest Reserves 1932; Echuya Forest Reserve late 1930s) and culminating with the gazetting of national parks in 1991, successive governments progressively excluded, displaced and evicted the Batwa from these lands to establish protected areas. The Batwa were not consulted, gave no free, prior and informed consent, and received no adequate compensation. Expert evidence (Dr Chris Kidd, Dr Liz Alden Wily) and colonial archive correspondence confirmed the Batwa's long historic occupation. Now landless, they live as squatters on land owned by Bakiga and Bafumbira communities, dependent on NGOs, having lost their livelihoods, identity and access to cultural and religious sites.

Issues

  1. Whether the Petition raises any questions of constitutional interpretation within the meaning of Article 137 of the 1995 Constitution.
  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 1995 Constitution.
  3. Whether the respondents' actions 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 1995 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 1995 Constitution.
  5. Whether the petitioners are entitled to the declarations and other reliefs prayed for.

Orders

  • Declaration that the ancestors of the present generation of Batwa inhabited, had an interest in and/or owned, in accordance with their customs, the land on which the 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 a landless, destitute and marginalised people needing affirmative action under Article 32(1) of the 1995 Constitution.
  • Petition allowed to the extent that affirmative action measures should be taken in favour of the Batwa people.
  • Matter referred to the High Court under Article 137(4)(b) to investigate and determine the appropriate affirmative action measures and relief.
  • Petitioners awarded costs against the respondents, jointly and/or severally.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Interpretation versus Enforcement under Article 137
The Constitutional Court may entertain a petition only where the determination of the alleged inconsistency with or contravention of the Constitution depends on the interpretation of a constitutional provision; petitions seeking mere enforcement of rights are properly brought in the High Court under Article 50.
Statutory Interpretation — Constitutional Interpretation — Reading Words into the Constitution by Reference to International Law
The Constitutional Court may refer to an international treaty or declaration in explaining the import of a constitutional provision, but it has no jurisdiction to read words into an explicit constitutional provision based on international law, as to do so 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; it applies where a group has been marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, and the measures are taken for the purpose of redressing imbalances existing against that group.
Human Rights — Indigenous and Marginalised Peoples — Marginalisation Created by History
A people evicted from ancestral land occupied by their forebears for generations, without consent and without adequate compensation, who are thereby rendered landless and destitute, constitute a group marginalised by 'any other reason created by history' within the meaning of Article 32(1) and are entitled to affirmative action.
Constitutional Law — Redress — Referral to the High Court under Article 137(4)(b)
Where affidavit evidence is insufficient to determine the appropriate redress on a constitutional petition, the Constitutional Court may, under Article 137(4)(b), refer the matter to the High Court to investigate and determine the appropriate redress.

Legislation cited (14)

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

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 v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Alenyo v Attorney General & Others (Constitutional Petition No. 5 of 2000)
  • Joyce Nakacwa v Attorney General & Others (Constitutional Petition No. 2 of 2001)
  • Ismail Serugo v Kampala City Council & Another (Constitutional Appeal No. 2 of 1998)
  • Advocates for Natural Resources Governance and Development & 2 Others v Attorney General & Another (Constitutional Petition No. 40 of 2013)
  • Human Rights Network of Uganda & 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
  • Alexkor Ltd v Richtersveld Community [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) & Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Communication 276/2003
  • Director of Public Prosecutions v Daudi Pete (Criminal Appeal No. 28 of 1990)
  • African Commission on Human and Peoples' Rights v Republic of Kenya (Application No. 006 of 2012)
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