Center For Health Human Rights and Development (CEHURD) and 2 Others v Attorney General (Constitutional Application No. 26 of 2018)

Constitutional Court · [2023] UGCC 1 · 2023 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion within a constitutional petition seeking anonymity for proposed affidavit witnesses

Decision

Application granted; registrar ordered to redact witnesses' names with initials on public affidavits, with unredacted copies reserved for the panel and opposing counsel

The full judgment

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Holding

The applicants sought to protect two survivors of sexual violence intending to swear affidavits in support of a constitutional petition by substituting their full names with initials. The court held that, although article 28(1) guarantees open justice, that right may be qualified in the interests of justice to protect vulnerable witnesses from social stigma, where the order does not encroach upon open justice itself. The respondent did not oppose, but the applicants still bore the burden of proof. Although doubtful that mere initialisation would achieve true anonymity, the court, exercising its inherent power under section 98 of the Civil Procedure Act, allowed the application and ordered the registrar to redact the deponents' names on public copies while unredacted copies remained available to the panel and opposing counsel.

Facts

The applicants intended to file a constitutional petition supported by affidavit evidence from survivors of sexual violence. They applied by notice of motion for an order that the identities of two proposed deponents be protected by redacting their full names from the affidavits and substituting initials, on the ground that disclosure of their names in the public domain would expose them to social stigma, reputational harm, victim-blaming and possible reprisals associated with sexual violence. The supporting affidavit of a program manager of the first applicant set out these concerns. The applicants did not seek to have the matter heard in camera. The respondent, the Attorney General, did not oppose the application.

Issues

Whether, consistent with the constitutional principle of open justice under article 28(1), the court should order that the identities of proposed witnesses who are survivors of sexual violence be protected on the affidavits filed in support of the petition.

Orders

The affidavits of the proposed witnesses be sworn in the ordinary way and filed in court.
The registrar of the court will redact the names of the deponents with a dark marker and substitute them with the deponents' initials for copies of the affidavits remaining on the public court record.
The registrar shall avail the members of the panel and counsel for the opposite party with an unredacted copy of the affidavits in question.
The costs of this application will abide the outcome of the main petition.

Key headnotes

Constitutional Law — Open Justice — Qualification to Protect Vulnerable Witnesses

The right to open justice guaranteed by article 28(1) of the Constitution may be qualified in the interests of justice to protect vulnerable witnesses, such as survivors of sexual violence, from social stigma, provided the protective order does not itself encroach upon the principle of open justice.

Civil Procedure — Inherent Powers of the Court — Section 98 Civil Procedure Act

A court may invoke its inherent power under section 98 of the Civil Procedure Act to make such orders as are necessary for the ends of justice, including directing the registrar to redact and initialise the names of deponents on copies of affidavits retained on the public court record.

Civil Procedure — Unopposed Application — Burden of Proof

The fact that an application is not opposed by the respondent does not relieve the applicant of the burden of establishing, both in law and on the facts, that the application ought to succeed.

Legislation cited (5)

Constitution of Uganda article 28(1)
Constitution of Uganda article 28(2)
Constitutional Court (Petitions and References) Rules 2005 r.23
Civil Procedure Rules Order 52 r.1
Civil Procedure Act s.98

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.