Wakilii

Sharon and Others v Makerere University [2006] UGSC 10

Supreme Court · 2006 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal from the Constitutional Court's dismissal of a petition under Article 137 of the Constitution
Decision
Appeal dismissed; decision of the Constitutional Court upholding the university's policy and regulations affirmed

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Holding

The Supreme Court dismissed the appeal, upholding the Constitutional Court. A secular public university's policy of scheduling lectures and examinations on any day of the week, including the Sabbath, did not contravene the appellants' freedom of religion or right to education. The reasonable accommodation offered (retaking missed examinations) reduced any adverse effect, and granting further accommodation would cause the university undue hardship. Constitutional rights are not absolute and must be enjoyed within the limits of Article 43, balancing individual rights against the public interest in accessible, affordable higher education. There was no waiver of rights, but the rights were not infringed. Any infringement would in any event have been a justifiable derogation under Article 43.

Facts

The appellants were Seventh Day Adventist students at Makerere University. Their faith treats Saturday (the Sabbath) as a holy day on which no work, including attending lectures or sitting examinations, may be done. From 1997 the university adopted a policy of expanding student intake and course offerings, conducting academic activities on any day of the week between 7.00 a.m. and 10.00 p.m. The Freshers Joining Instructions issued to and received by the appellants stated, in bold, that programmes might run seven days a week and that the university might not meet the interests of a particular religious group. The appellants missed examinations scheduled on Saturdays, delaying or abandoning courses. They sought rescheduling of, or special arrangements for, examinations falling on the Sabbath. The university declined, citing its secular character, limited facilities, financial costs, and concern that exemptions would invite similar demands from other groups and compromise examination integrity, but offered to let the appellants retake missed examinations when next offered. The appellants petitioned the Constitutional Court, which dismissed the petition; they appealed.

Issues

  1. Whether the respondent university's policy and regulations requiring students to attend lectures and sit tests and examinations on Saturday (the Sabbath) contravened the appellants' freedom of religion under Articles 29(1)(c) and 37 and their right to education under Article 30, read with Article 20 of the Constitution.
  2. Whether, by accepting the Freshers Joining Instructions, the appellants waived their constitutional rights to freedom of religion and education.
  3. Whether the respondent bore the burden of proving a justifiable derogation under Article 43 of the Constitution, and whether such derogation was established.

Orders

  • Appeal dismissed.
  • No order as to costs.

Key headnotes

Constitutional Interpretation — Generous and Purposive Construction — Constitution Read as an Integrated Whole
A constitution must be interpreted broadly, generously and purposively rather than narrowly or legalistically, and as an integrated whole, so that all provisions bearing on a subject are read together to give effect to its spirit, particularly provisions protecting fundamental rights.
Freedom of Religion — Sincerity of Belief — Court's Limited Role
Freedom of religion protects sincerely held beliefs having a nexus with religion, irrespective of whether they accord with official dogma; a court may inquire only into the sincerity of the claimant's belief, not its validity or correctness, and is not the arbiter of religious doctrine.
Freedom of Religion and Right to Education — Limitation by Public Interest — Article 43 of the Constitution
The rights to freedom of religion and education are not absolute; under Article 43 they must be enjoyed without prejudice to the rights of others or the public interest, and may be limited to the extent acceptable in a free and democratic society.
Validity of a Measure — Both Purpose and Effect Relevant
In determining whether a law, regulation or policy infringes a constitutional right, both its purpose and its effect must be examined; either an unconstitutional purpose or an unconstitutional effect will invalidate the measure, but a general measure advancing legitimate secular objectives is valid despite an indirect burden on religious observance.
Duty to Accommodate — Reasonable Accommodation Short of Undue Hardship
Where a generally applicable rule adversely affects a person's religious practice, the duty is to take reasonable steps to accommodate the person short of undue hardship; accommodation is not required where it would cause undue interference, expense or hardship to the institution's operations.
Justifiable Derogation — Proportionality Test — Burden of Proof
A limitation on a fundamental right is justifiable only where the objective is of sufficient importance to warrant overriding the right and the means are proportionate, being rationally connected to the objective, impairing the right as little as possible, and proportionate in effect; the burden to prove justifiable derogation shifts to the party invoking Article 43 only after infringement of a right is first proved.
Waiver of Fundamental Rights — Requirements
Whether a fundamental right such as freedom of religion can be waived is doubtful; any waiver, if possible at all, must be voluntary, freely expressed with a clear understanding of its consequences, and explicit in express, specific and clear terms; merely accepting institutional joining instructions does not amount to a waiver of constitutional rights.

Legislation cited (12)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.7
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.29(1)(c)
  • Constitution of Uganda 1995 art.30
  • Constitution of Uganda 1995 art.37
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995, National Objectives and Directive Principles of State Policy, Objective XVIII
  • Universities and Other Tertiary Institutions Act 2001 (Act 7 of 2001) s.3
  • Universities and Other Tertiary Institutions Act 2001 (Act 7 of 2001) s.28(1)

Cases cited (14)

  • R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321
  • R v Oakes (1987) LRC (Const) 477
  • Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Re Chikweche (1995) 2 LRC 93
  • Sherbert v Verner 374 US 398
  • Tellis and Others v Bombay Municipal Corporation and Others (1987) LRC (Const) 351
  • Syndicat Northcrest v Amselem [2004] 2 SCR 551
  • Commission scolaire regionale de Chambly v Bergevin [1994] 2 SCR 525
  • Central Okanagan School District No. 23 v Renaud [1992] 2 SCR 970
  • Central Alberta Dairy Pool v Alberta (Human Rights Commission) [1990] 2 SCR 489
  • ATTORNEY GENERAL -Vs- ABUKI AND ANOTHER
  • Braunfeld -Vs- Brown
  • South Dokata V. North Caroline 192 US 268
  • Tinyefunza -Vs- Attorney General
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.