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Human Rights Awareness Promotion Forum Uganda & Others v Attorney General (Constitutional Petitions 25 & 10 of 2017)

Constitutional Court · [2025] UGCC 24 · 2025 Petitions Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated constitutional petitions brought under Article 137 of the Constitution challenging the constitutionality of statutory abortion offences and an alleged legislative omission.
Decision
Petitions dismissed by majority; each party to bear its own costs.

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Holding

The consolidated petitions challenged Penal Code Act sections 130, 131 and 132 (criminalising abortion) as contravening women's rights to health, life, dignity, equality and freedom from cruel treatment, and challenged the State's failure to enact a law regulating termination of pregnancy under Article 22(2). By a majority (Obura, Kazibwe-Kawumi and Mugenyi JJCC), the Constitutional Court held the petitions had no merit and dismissed them, with each party bearing its own costs. The minority (Luswata JCC, with Egonda-Ntende JCC agreeing) would have allowed the petitions, finding the impugned sections inconsistent with Articles 8A, 22(1), 24, 33, 44(a) and 45 and the omission contrary to Articles 22(2) and 79.

Facts

Two petitions, consolidated under Rule 13, challenged Uganda's abortion laws. In Petition No. 25 of 2020, HRAPF sought declarations that Penal Code Act sections 130, 131 and 132 (formerly 141-143), which criminalise procuring, self-procuring and assisting abortion, are inconsistent with constitutional rights to health, life, dignity, equality and freedom from cruel treatment. In Petition No. 10 of 2017, CEHURD, Prof. Twinomugisha and Dr. Nakayi sought declarations that the State's omission to enact a law regulating termination of pregnancy contravenes Article 22(2), and an order compelling such legislation. Supporting affidavits described high maternal mortality from unsafe abortion, prosecution of poor women and health workers, and government policy guidelines (2012 and 2015) that were shelved for lacking the force of law. The Attorney General contended that Article 22 protects the unborn child, that section 207 permits abortion to save the mother's life or health, and that the petitions raised no question for constitutional interpretation.

Issues

  1. Whether sections 130, 131 and 132 of the Penal Code Act violate the right to health and are inconsistent with Article 45 read together with Objectives XIV and XX of the NODPSP and Article 8A of the Constitution.
  2. Whether sections 130, 131 and 132 of the Penal Code Act contravene Articles 21 and 33 of the Constitution.
  3. Whether sections 130, 131 and 132 of the Penal Code Act contravene Article 22(1) of the Constitution.
  4. Whether sections 130, 131 and 132 of the Penal Code Act contravene Articles 24 and 44(a) of the Constitution.
  5. Whether the omission by the State to formulate and pass a law regulating termination of pregnancy contravenes Article 22(2) of the Constitution.
  6. Whether the omission by the State to formulate and pass a law regulating termination of pregnancy contravenes Article 79(1) and (2) of the Constitution.
  7. Whether the petitioners are entitled to the remedies sought.

Orders

  • These petitions are dismissed (by the majority of Obura, Kazibwe-Kawumi and Mugenyi JJCC).
  • Each party to bear its own costs.

Key headnotes

Constitutional Interpretation — Governing Principles
The Constitution must be read together as an integral whole; a provision conferring a fundamental right is given a dynamic, progressive and liberal construction, words that are clear bear their plain and ordinary meaning, and imprecise or ambiguous provisions attract a purposive interpretation guided also by the National Objectives and Directive Principles of State Policy.
Constitutional Court — Jurisdiction under Article 137
The Constitutional Court's jurisdiction under Article 137 is confined to questions requiring interpretation of the Constitution; a petition must show on its face that determination of the dispute depends on construing a constitutional provision, and the mere allegation that a provision has been violated does not suffice to invoke that jurisdiction.
Constitutional Petitions — Burden of Proof
In a constitutional petition the petitioner bears the burden of raising a prima facie case that a fundamental right or freedom has been contravened; once that is established the burden shifts to the State to rebut the claim or justify the limitation.
Limitation of Fundamental Rights — Article 43
A limitation on a fundamental right is permissible only where its enjoyment would prejudice the rights of others or the public interest, and the limitation is itself valid only if it is acceptable and demonstrably justifiable in a free and democratic society; the State bears the onus of demonstrating that justification.

Legislation cited (24)

  • Penal Code Act s.130
  • Penal Code Act s.131
  • Penal Code Act s.132
  • Penal Code Act s.207
  • Penal Code Act s.195
  • Constitution of Uganda 1995 art.8A
  • Constitution of Uganda 1995 art.20(2)
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.22
  • Constitution of Uganda 1995 art.24
  • Constitution of Uganda 1995 art.27
  • Constitution of Uganda 1995 art.33
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.44(a)
  • Constitution of Uganda 1995 art.45
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.287
  • Constitution of Uganda 1995 Objective XIV (NODPSP)
  • Constitution of Uganda 1995 Objective XX (NODPSP)
  • Local Government Act 1997 s.143(2)
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) art.12
  • International Covenant on Economic, Social and Cultural Rights art.12
  • Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) art.14

Cases cited (24)

  • Centre for Health, Human Rights and Development v Attorney General (Constitutional Petition No. 16 of 2011)
  • Christopher Madrama Izama v Attorney General (Constitutional Appeal No. 1 of 2016)
  • Federation of Women Lawyers (FIDA-Kenya) & Ors v Attorney General of Kenya & Ors (Petition No. 266 of 2015)
  • Charles Onyango Obbo & Anor v Attorney General [2004] UGSC 81
  • Muwanga Kivumbi v Attorney General (Constitutional Appeal No. 06 of 2011)
  • Olara Otunu vs Attorney General and Salvatori Abuki. SC Constitutional Appeal No. 1 of 1998
  • Rex v Bourne [1938] 3 All ER 615
  • Roe v Wade 410 US 113 (1973)
  • Brüstle v Greenpeace (Case C-34/10)
  • David Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016) [2017] UGSC 11
  • Attorney General v Susan Kigula & 417 Others (Constitutional Appeal No. 3 of 2016)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Women's Pro Bono Initiative v Attorney General (Constitutional Petition No. 12 of 2021)
  • PAK & Anor v Attorney General & 3 Ors (Constitutional Petition No. E009 of 2020)
  • Edward Byaruhanga Katumba v Daniel Kiwalabye Musoke (Civil Appeal No. 2 of 1998)
  • Sitenda Sebalu v Sam Njuba & Anor (Election Petition Appeal No. 26 of 2007)
  • Speedway Interfreight Uganda Ltd & 3 Ors v Attorney General & Anor (Constitutional Petition No. 85 of 2011)
  • Dobbs v Jackson Women's Health Organization, 597 US (2022)
  • Tysiąc v Poland (Application No. 5410/2003)
  • Artavia Murillo et al v Costa Rica, Inter-Am. Ct. H.R. (Ser. C) No. 257 (2012)
  • Carolyn Turyatemba & 4 Others v Attorney General & Anor (Constitutional Petition No. 15 of 2006)
  • Mbabali Jude v Edward K. Sekandi (Constitutional Petition No. 028 of 2012)
  • Baku Raphael Obudra & Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2003)
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