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Southern African Litigation Centre (SALC)... (Consolidated Constitutional Application 46 of 2023; Constitutional Application 47 of 2023; Constitutional Application 48 of 2023; Constitutional Application 53 of 2023) 2023 UGCC 110 (2023-12-13

Constitutional Court · [2023] UGCC 110 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Applications for admission as amicus curiae in consolidated constitutional petitions challenging the Anti-Homosexuality Act, 2023
Decision
Applications for admission as amicus curiae disallowed; no order as to costs.

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Holding

The court refused both NGO applicants admission as amicus curiae. It held that the neutrality and impartiality of a prospective amicus is as important as its expertise, and that an applicant whose website and public statements openly support a position in contention before the court cannot be regarded as neutral. Both applicants had publicly endorsed LGBTIQ+ rights or condemned the impugned Anti-Homosexuality Act, 2023, rendering them partisan under the Amicus Curiae Rules. The court further held that an amicus must raise points of law not already raised by the parties; here the issues the applicants sought to address had been canvassed by petitioners with commensurate expertise. The applications were disallowed with no order as to costs.

Facts

Following the promulgation of the Anti-Homosexuality Act, 2023, Constitutional Petitions challenging its constitutionality were consolidated before the Constitutional Court. The Southern African Litigation Centre (SALC) and the Centre for Applied Legal Studies (CALS), both non-governmental organisations, filed applications seeking admission as amicus curiae in those petitions. SALC relied on its work in human rights research and strategic litigation; CALS relied on its expertise in gender justice and the domestic implementation of international human rights law. The applications were conceded by the petitioner respondents but opposed by the Attorney General, who averred that the applicants were not proper entities for admission because their websites and public statements demonstrated partiality to LGBTIQ+ interests and condemnation of the impugned statute, and that they lacked sufficient or relevant expertise. The applicants, without fully denying their stated positions, argued that bias should be assessed from the intended submissions rather than extraneous facts.

Issues

  1. Whether the applicants satisfied the requirements for admission as amicus curiae under the Judicature (Amicus Curiae) Rules, 2022, in particular the requirement of neutrality and impartiality.
  2. Whether the points of law the applicants sought to address were novel and not already canvassed by the parties to the petitions.

Orders

  • Constitutional Applications No. 46, 47, 48 and 53 of 2023 are disallowed.
  • No order as to costs.

Key headnotes

Amicus Curiae — Admission — Neutrality and Impartiality
The relevance of an amicus brief hinges as much on the neutrality and impartiality of its author as on the expertise it offers; an applicant whose website or public statements explicitly pronounce support for a position in contention before the court cannot be regarded as neutral and runs afoul of the Amicus Curiae Rules by being hostile to the opposing party and partisan on the issues.
Amicus Curiae — Distinction from Intervener
An amicus curiae has an interest in providing objective, cogent assistance to the court to advance jurisprudence and may not advocate a point of view in support of one party, whereas an intervener, though lacking locus standi, may hold a partisan interest and advocate for one side.
Amicus Curiae — Points of Law Not Raised by the Parties — Novelty
Under Rules 6(3) and 7(a) of the Amicus Curiae Rules, admission is restricted to applicants seeking to address points of law not raised or otherwise overlooked by the parties; an amicus may not duplicate legal positions already canvassed by parties who themselves possess the expertise to address them.
Amicus Curiae — International Organisations — Global Policy Perspective
International organisations such as United Nations agencies are distinguishable, as their strategic mandate may bring a global policy perspective that clarifies international considerations before the court without negating the domestic connotations of a dispute.

Legislation cited (5)

  • Judicature (Amicus Curiae) Rules, 2022 r.5
  • Judicature (Amicus Curiae) Rules, 2022 r.6(2)
  • Judicature (Amicus Curiae) Rules, 2022 r.6(3)
  • Judicature (Amicus Curiae) Rules, 2022 r.7(a)
  • Judicature (Amicus Curiae) Rules, 2022 r.8(1)

Cases cited (6)

  • UHAI EASHRI and Another v Human Rights Awareness & Promotion Forum (HRAPF) and Another (Consolidated Applications No. 20 & 21 of 2014)
  • Trusted Society of Human Rights Alliance v Mumo Matemo and Others, Petition No. 12 of 2013 (Supreme Court, Kenya)
  • United States Tobacco Co. v Minister for Consumer Affairs [1988] 83 A.L.R. 79 (F.C.A.)
  • Kenya Human Rights Commission and Others v Forum Pour le Renforcement de la Societe Civile (FORSC) and Others, EACJ Application No. 21 of 2017
  • Doctors for Life International v Speaker of the National Assembly and Others, Constitutional Case No. 12 of 2005 (Constitutional Court of South Africa)
  • Male H. Mabirizi Kiwanuka and Others v Attorney General (Constitutional Appeal No. 2 of 2018)
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.