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Hon. Fox Odoi & 21... (Consolidated Constitutional Petition 14 of 2023; Consolidated Constitutional Petition 15 of 2023; Consolidated Constitutional Petition 16 of 2023; Consolidated Constitutional Petition 85 of 2023) 2024 UGCC 10 (2024-04

Constitutional Court · [2024] UGCC 10 ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated constitutional petitions challenging the procedure for enacting, and the constitutionality of provisions of, the Anti-Homosexuality Act, 2023
Decision
—

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Holding

The Constitutional Court rejected the procedural challenges to the Anti-Homosexuality Act, 2023. It held the Act did not alter prior judgments contrary to Article 92, because the cited decisions vested no relevant legal rights; the Certificate of Financial Implications did not offend Article 93 as the law could be accommodated within existing budgetary provisions; the Ugandan Constitution imposes no enforceable duty of extensive public participation, representative participation through elected MPs sufficing; alleged partiality by the Speaker breached at most parliamentary rules, not the Constitution; and the Article 31(2a) marriage amendment was validly enacted with no proven Article 44(a) violation. The Court then proceeded to the void-for-vagueness challenge under the principle of legality in Article 28(12).

Facts

Following the enactment of Uganda's Anti-Homosexuality Act, 2023, several constitutional petitions challenging the statute were lodged and, by consent, consolidated. The petitioners — including legislators, activists, academics and civil-society organisations — contested both the procedure adopted by Parliament in enacting the Act and the substantive compatibility of numerous sections with constitutional rights and freedoms and with international human-rights instruments to which Uganda is a party. They alleged that the Act altered earlier court decisions, imposed an unconstitutional charge on the Consolidated Fund, was passed without meaningful public participation, was steered by a partial Speaker, and that the related Article 31(2a) constitutional prohibition of same-sex marriage was improperly introduced. The Attorney General opposed the petition, denying any procedural or substantive constitutional violation, supported on specific aspects by interested parties Pastor Martin Sempa, Eng. Stephen Langa and Family Life Network Limited. UNAIDS was admitted as amicus curiae.

Issues

  1. Whether the Anti-Homosexuality Act, 2023 alters the decisions or judgments of court in contravention of Article 92 of the Constitution.
  2. Whether the private member's bill introducing the Act imposed a charge on the Consolidated Fund or other public fund in contravention of Article 93(a)(ii) of the Constitution.
  3. Whether the Act was enacted without meaningful and adequate public participation in contravention of Objective II(1) and Articles 1, 2, 8A, 20, 36, 38 and 79 of the Constitution.
  4. Whether the conduct of the Speaker of Parliament during the enactment was inconsistent with Articles 2(1) & (2) and 89(1) & (2) of the Constitution.
  5. Whether the procedure of amending the Constitution to introduce Article 31(2a) contravened Articles 1(1), 44(a) and 94 of the Constitution.
  6. Whether sections 6, 7, 9, 11, 14 and 15 of the Act are inconsistent with the principle of legality guaranteed under Article 28(12) of the Constitution.
  7. Whether the impugned sections are inconsistent with the rights to equality and non-discrimination, human dignity, privacy, freedom of expression and association, profession and occupation, and health and property under the Constitution.
  8. Whether there are any remedies available to the parties.

Key headnotes

Constitutional Law — Retrospective Legislation — Article 92 — Alteration of Court Decisions
A statute does not contravene the prohibition on retrospective legislation in Article 92 of the Constitution unless it divests legal rights already vested by a prior judgment; where an earlier decision conferred or determined no such rights, a later Act cannot be said to alter that decision.
Constitutional Law — Charge on the Consolidated Fund — Article 93(a)(ii) — Certificate of Financial Implications
Article 93(a)(ii) prohibits only a charge on the Consolidated Fund that cannot be accommodated within existing budgetary provisions; a Certificate of Financial Implications confirming that a Bill is budget-neutral satisfies the constitutional requirement, and non-compliance with an incidental statutory requirement of the Public Finance Management Act does not vitiate the resulting Act's constitutionality.
Constitutional Law — Public Participation in Legislation — Representative Participation
The Ugandan Constitution does not impose an unequivocal duty to facilitate extensive public participation comparable to that found in the South African Constitution; participation in legislative processes is satisfied by representative participation through elected members of Parliament, and a parliamentary committee's consultations under rule 129(2) are a matter of its discretion.
Constitutional Law — Parliamentary Rules of Procedure — Separation of Powers — Conduct of the Speaker
A breach of parliamentary rules of procedure enacted under the general authority of Article 94(1) does not ipso facto constitute a constitutional violation invoking the Constitutional Court's jurisdiction, except for rules on quorum and voting enacted under Articles 88 and 89; complaints about the Speaker's conduct of debate are matters for Parliament's internal mechanisms.
Constitutional Law — Constitutional Amendment Procedure — Article 31(2a) — Floor Amendments
An amendment moved on the floor of the Committee of the Whole House that was not part of a committee's report is validly enacted where the constitutional amendment procedure under Articles 259, 260 and 262 is followed; Parliament retains the prerogative to accept, reject or modify committee recommendations.
Criminal Law & Procedure — Principle of Legality — Article 28(12) — Void-for-Vagueness Doctrine
Under Article 28(12) a criminal offence must be defined and its penalty prescribed by law, but a statutory provision is not void for mere uncertainty; it is unconstitutionally vague only where it gives no intelligible standard for legal debate and can be given no sensible or ascertainable meaning through the rules of statutory interpretation.

Legislation cited (34)

  • Anti-Homosexuality Act, 2023 s.6
  • Anti-Homosexuality Act, 2023 s.7
  • Anti-Homosexuality Act, 2023 s.9
  • Anti-Homosexuality Act, 2023 s.11
  • Anti-Homosexuality Act, 2023 s.14
  • Anti-Homosexuality Act, 2023 s.15
  • Anti-Homosexuality Act, 2023 s.16
  • Anti-Homosexuality Act, 2023 s.17
  • Constitution of Uganda art.1
  • Constitution of Uganda art.2
  • Constitution of Uganda art.8A
  • Constitution of Uganda art.20
  • Constitution of Uganda art.28(12)
  • Constitution of Uganda art.31(2a)
  • Constitution of Uganda art.36
  • Constitution of Uganda art.38
  • Constitution of Uganda art.44(a)
  • Constitution of Uganda art.79
  • Constitution of Uganda art.88
  • Constitution of Uganda art.89
  • Constitution of Uganda art.92
  • Constitution of Uganda art.93(a)(ii)
  • Constitution of Uganda art.94
  • Constitution of Uganda art.260
  • Constitution of Uganda art.262
  • Constitution of Uganda art.274(1)
  • Evidence Act, Cap. 6 s.101
  • Evidence Act, Cap. 6 s.103
  • Public Finance Management Act, 2015 s.76
  • Children's Act s.3(2)
  • Penal Code Act s.145
  • Parliamentary Rules of Procedure r.77
  • Parliamentary Rules of Procedure r.124
  • Parliamentary Rules of Procedure r.129(2)

Cases cited (31)

  • David Wesley Tusingwire v Attorney General [2017] UGSC 11
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • P. K. Ssemwogerere & Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Okello Okello John Livingstone & 6 Others v Attorney General (Constitutional Petition No. 1 of 2005)
  • Attorney General v Maj. Gen. David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Uganda Law Society v Attorney General [2020] UGCC 4
  • Centre for Public Interest Law (CEPIL) & Others v Attorney General [2021] UGCC 44
  • Prof. J. Oloka-Onyango & 9 Others v Attorney General [2014] UGCC 14
  • Kasha Jacqueline & Others v Rolling Stone Ltd & Another (Miscellaneous Cause No. 163 of 2010)
  • Victor Juliet Mukasa & Another v Attorney General (HCMC No. 247 of 2006)
  • BN v Uganda (Criminal Appeal No. 381 of 2016)
  • Ham Enterprises Limited & Others v Diamond Trust Bank Limited & Another [2023] UGSC 15
  • Tukamuhebwa George & Others v Attorney General & Another (Constitutional Petition No. 59 of 2011)
  • Parliamentary Commission v Wilson Mwesigye [2019] UGSC 11
  • Male H. Mabirizi & Others v Attorney General (Consolidated Constitutional Appeal No. 2, 3 & 4 of 2018)
  • Doctors for Life International v Speaker of the National Assembly (CCT 12/05)
  • Centre for Health, Human Rights and Development (CEHURD) & Others v Attorney General & Another (Constitutional Petition No. 22 of 2015)
  • Centre for Public Interest Law Ltd v Attorney General [2023] UGCC 6
  • Hon. Francis Zaake v Attorney General (Constitutional Petition No. 6 of 2022)
  • Paul K. Semwogerere & Another v Attorney General (Constitutional Appeal No. 1 of 2000)
  • Charles Onyango Obbo & Another v Attorney General [2004] UGSC 81
  • Francis Tumwesige Ateenyi v Attorney General [2022] UGCC 5
  • Andrew Karamagi & Another v Attorney General [2023] UGCC 2
  • Centre for Domestic Violence Prevention & Others v Attorney General (Constitutional Petition No. 13 of 2014)
  • Suresh Kumar Koushal & Another v NAZ Foundation & Others, Civil Appeal No. 10972 of 2013
  • British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 Others (2019) eKLR
  • Lawrence & Others v Texas, 539 U.S. 558
  • Dudgeon v United Kingdom, ECTHR 7575/76
  • Toonen v. Australia, UNHRC Communication No. 488/1992
  • R. v Secretary of State for the Home Department: Ex parte Simms (2000) 2 AC 115
  • Fawcett Properties v Buckingham County Council (1960) 3 All E.R. 503
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.