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In the Matter Of Application For Leave To Be Added As Amicus Curiae by The Secretariat Of Joint United Nations Program On H... (Consolidated Constitutional Application 55 of 2023; Constitutional Application 60 of 2023) 2023 UGCC 111 (2023-1

Constitutional Court · [2023] UGCC 111 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Applications for leave to be admitted as amicus curiae in consolidated constitutional petitions challenging the Anti-Homosexuality Act, 2023
Decision
UNAIDS admitted as amicus curiae subject to conditions; the pharmaceutical companies' application declined; each party to bear its own costs

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Holding

The Court reaffirmed that admission of an amicus curiae is discretionary and governed by the tests in Rules 5, 7 and 8 of the Judicature (Amicus Curiae) Rules 2022. Despite the Attorney General's objection that UNAIDS held a public position against the Anti-Homosexuality Act, 2023, the Court admitted UNAIDS as amicus, finding that its documented global work on HIV/AIDS provided important information useful to deciding the consolidated petitions, subject to it filing a brief linking that expertise to the dispute. The pharmaceutical companies were refused: their materials were largely general corporate LGBTQ-support policies, did not amount to expert assistance, and, being profit-driven enterprises, failed the impartiality test.

Facts

Two applications sought leave to be joined as amicus curiae in consolidated constitutional petitions challenging the Anti-Homosexuality Act, 2023. In Application No. 55 of 2023, UNAIDS, a joint programme uniting eleven UN agencies in the global fight against HIV/AIDS, sought to address the Court on the Act's impact on efforts to curtail HIV/AIDS and on the right to health. In Application No. 60 of 2023, four pharmaceutical companies sought to present perspectives from the healthcare sector on access to health services for those affected by the Act. The Attorney General opposed both, contending the applicants harboured negative sentiments towards the Act and were neither neutral nor impartial, citing UNAIDS website publications urging Uganda not to enact the law and the companies' corporate policies supporting LGBTQ communities. UNAIDS's amicus brief did not connect its documented worldwide work to the matters before the Court, while the companies' materials were largely general corporate policies and their brief raised concerns about the Act's effect on their business operations.

Issues

  1. Whether UNAIDS satisfied the requirements under the Judicature (Amicus Curiae) Rules 2022 for admission as amicus curiae.
  2. Whether the pharmaceutical companies satisfied the requirements under the Judicature (Amicus Curiae) Rules 2022 for admission as amicus curiae.
  3. Whether the applicants were neutral and impartial, and whether their proposed submissions would assist the Court with novel and useful matters of law.

Orders

  • UNAIDS admitted as amicus curiae on conditions.
  • UNAIDS to file a brief relating its documented expertise to the dispute before the Court.
  • No further documents may be added to those already filed by UNAIDS.
  • UNAIDS to file its brief no later than Friday 15th December 2023.
  • The application by the pharmaceutical companies to be admitted as amicus curiae is declined.
  • Each party to bear its own costs.

Key headnotes

Civil Procedure — Amicus Curiae — Discretionary Nature of Admission
The admission of an amicus curiae is purely at the discretion of the court, which is not bound to rely upon documents presented and admitted by it.
Civil Procedure — Amicus Curiae — Tests for Admission under the Judicature (Amicus Curiae) Rules 2022
An applicant for admission as amicus curiae must satisfy the requirements of Rule 5 of the Judicature (Amicus Curiae) Rules 2022, namely neutrality and impartiality, that its submission will give the court assistance it would not otherwise have, that the points of law or fact are novel and aid the development of jurisprudence, fidelity to the law, useful and principled submissions, participation in the public interest, and demonstrable expertise in the area in dispute.
Civil Procedure — Amicus Curiae — Impartiality of Profit-Driven Commercial Applicants
Where an applicant is a commercial enterprise run for profit, that profit motive may affect its impartiality, and materials amounting to general corporate policy rather than expert assistance will fail the impartiality test for admission as amicus curiae.
Civil Procedure — Amicus Curiae — Neutrality Where Applicant Has Expressed a Public Position
An applicant that has expressed a public position on an impugned law may nonetheless be admitted as amicus curiae where the documents actually presented to the court provide important information useful to an informed decision and the documents evidencing the position are not part of the bundle relied on.

Legislation cited (7)

  • Judicature (Amicus Curiae) Rules 2022 (SI 54 of 2022) r.4
  • Judicature (Amicus Curiae) Rules 2022 (SI 54 of 2022) r.5
  • Judicature (Amicus Curiae) Rules 2022 (SI 54 of 2022) r.6(2)
  • Judicature (Amicus Curiae) Rules 2022 (SI 54 of 2022) r.6(3)
  • Judicature (Amicus Curiae) Rules 2022 (SI 54 of 2022) r.7
  • Judicature (Amicus Curiae) Rules 2022 (SI 54 of 2022) r.8
  • Anti-Homosexuality Act, 2023

Cases cited (1)

  • In re Prof J. Oloka-Onyango & 8 Ors v Amama Mbabazi & Yoweri Kaguta Museveni (Civil Application No. 2 of 2016)
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.