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Uganda’s Dred Scott v Sandford Part 6: Fox Odoi & others v AG & principles of constitutional interpretation

The past five editions of this column have been dedicated to an elaboration of the many ways in which the decision in of the Constitutional Court in Fox Odoi and Others v Attorney General and Others (Consolidated Constitutional Petitions Nos 14, 15, 16 and 85 of 2023), handed down on 3rd April 2024, will in time come to be understood as being as problematic and pernicious as that most infamous decision of the United States Supreme Court – rendered in the 1857 matter of Dred Scott v Sandford.

Today, we conclude this examination by taking a look at another strange aspect of the Fox Odoi decision: the fact that in many parts, it read more like the judgment of an ordinary civil court rather than that of a Constitutional Court - one tasked with and committed to identifying and applying relevant and time-honoured constitutional values.

This was evident throughout the judgment, and indeed was given away right from the start of the decision, at pages 6-9. The five justices of the Constitutional Court perfunctorily referred to the ‘general rules of constitutional interpretation’ at page 6 of the decision and at the top of page 7 (paragraphs 8-9), noting that these had been ‘aptly summed up’ in the 2017 case of David Wesley Tusingwire v Attorney General.

One would have expected the Constitutional Court of Uganda to go to some lengths to expound on these principles and explain their significance for the determination of the case before it. This is especially since, as the Court acknowledged at page 202, paragraph 537 of the decision, it was ‘abundantly clear’ that the petition had ‘canvassed matters of grave national importance and immense public interest’.

Instead, the five justices of the Constitutional Court then pivoted into a peculiar incursion into the rules of evidence and the determination of burdens of proof. This started at page 7, paragraph 10 of the decision – which immediately followed the token nod to the principles of constitutional interpretation – wherein the five justices observed as follows: ‘The highlighted rules of interpretation shall invariably be tempered by the applicable rules of evidence. We are acutely aware that before us is a challenge to the legislative function of Parliament.

Hence, mindful of the importance of the doctrine of separation of powers and out of a sense of deference to the role of the legislative branch of government in a constitutional democracy, self-restraint by the judicial branch when dealing with challenges to the constitutionality of laws is a matter of prudence.

This form of restraint is what has been coined as the presumption of constitutionality. lt manifests in the notion that a statutory or other legislative enactment is presumed to be constitutional and hence, for evidential purposes, “the burden is upon him (or her) who attacks it to show that there has been a clear transgression of the constitutional principles”.

Interestingly, the sole authority proffered by the five justices for the assertion of this ‘presumption of constitutionality’ was a 1958 Indian case – Ram Krishna Dalmia v Shri Justice S.R. Tendolkar and Others [AIR 1958 SC 538]. The five justices then proceeded, in paragraph 11 (at page 7) of the decision to note that: ‘That proposition is in tandem with the renown evidential rule that he who alleges must prove.

Thus, section 101(1) of the Evidence Act, Cap. 6 provides that “whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove those facts.”

Accordingly, the petitioners being the party that seeks to have this Court give judgment in their favour would bear the onus of proof of all the material facts that underpin this petition. They would thus bear the legal burden of proof that makes it incumbent upon the claimant to prove what he contends.

Stated differently, the petitioners as the party desiring the Court to decide in their favour, do bear the duty to satisfy the Court that the conditions which entitle them to judgment have been established.’ In support of this proposition, the Court cited Halsbury’s Laws of England, Civil Procedure, Vol.12 (2020), paragraph 697. The justices’ foray into evidentiary rules continued on pages 8 and 9, with another pointed observation, at paragraph 13 (at page 8) of the decision, to the effect that: ‘...the petitioners bear the legal burden of establishing the totality of their case as against the respondents.’

It is impossible to reconcile this approach to constitutional adjudication – which veritably animated (or, more accurately, infected) the rest of the court’s decision – with the letter and spirit of the 1995 Constitution. The Constitution vests the Constitutional Court with the mandate of interpreting the provisions of that document (Article 137 (1)) and further burdens it, under Article 137 (3), with the solemn and heavy responsibility of striking down any Act of Parliament (or or any other law or anything in or done under the authority of any law) or any act or omission by any person or authority.

This authority – and duty – is consistent with the terms of Article 2, which is to the effect that where any law or any custom is inconsistent with any of the provisions of the Constitution, the Constitution must prevail, and that other law or custom shall, to the extent of the inconsistency, be void.

In light of this clear constitutional duty – how can the five justices of the Constitutional Court justify the insertion (or assertion) of a notion of a ‘presumption of constitutionality’ in our constitutional jurisprudence? In which part of the 1995 Constitution is it suggested that Acts of Parliament must be ‘presumed’ to be constitutional?

And if Acts of Parliament are ‘presumed’ to be constitutional, why should this presumption not also apply to any one of the other acts or omissions which the Constitutional Court is vested with the duty of reviewing – that is to say, customs (Article 2) and acts or omissions by any persons or authorities (Article 137 (3))?

To take this point a little further – if an Act of Parliament is ‘presumed’ to be constitutional, why should a similar presumption not attach to actions or omissions of the President or the Executive branch of government? In articulating and relying upon this extra- constitutional ‘presumption’, the five justices of the constitutional court, in my humble opinion, not only misled themselves but also placed an unnecessary and counterproductive restraint upon their own role, function and indeed – duty – as justices of the esteemed tribunal.

In so doing, they did with respect to legislative power, what the court in the infamous 1966 case of Uganda v Commissioner of Prisons, Ex Parte Matovu did with respect to executive (or, more accurately, military) power. As such, in addition to the ‘ghost of Ex Parte Matovu’ which was identified by Professor Oloka Onyango in his seminal 1996 article in the Makerere Law Journal – ‘Expunging the Ghost of Ex Parte Matovu: Challenges facing the Ugandan Judiciary in the 1995 Constitution’ – the five justices have presented Ugandans with a new apparition which must be the subject of rigorous exorcism: ‘the ghost of Fox Odoi’.

At the same time, in my humble opinion, the five justices also misdirected themselves in suggesting that the high rules of constitutional interpretation had to ‘invariably be tempered by the applicable rules of evidence’. Indeed, most of the constitutional damage effected by the 203-page decision of the Court can be located in that sentence. The Cambridge Dictionary defines ‘to temper’ as being ‘to lessen the force or effect of something’.

Indeed, in Fox Odoi, by an inordinate deference to the ordinary rules of evidence, the Constitutional Court tragically lessened the force and effect that would have been achieved by a rigorous application of the rules of constitutional interpretation in their pure and unadulterated form.

A significant part of the problem further reveals itself in the language in paragraphs 11 and 13 of the decision, in which the court makes reference to ‘the petitioners as the party desiring the court to decide in their favour’ (paragraph 11) and to ‘their case’ (paragraph 13). It is also evident in the references to ‘legal right’ and ‘liability’ in paragraph 11 of the decision. Again, it bears recalling the court’s recognition, at paragraph 537 of the decision, that the petition had ‘canvassed matters of grave national importance and immense public interest’.

In this regard, it must be realized that, by their very nature, all constitutional petitions brought under Article 137 necessarily ‘canvass matters of grave national importance and immense public interest’ in so far as they intrinsically involve an enquiry into whether a particular Act of Parliament or action by a public official is consistent with the supreme law of the land.

Each such action is an additional brick laid in the construction of a suitable constitutional house – wide and strong enough to accommodate the entirety of the aspirations of the various societies and peoples who make up the State of Uganda. Indeed, any such action – however ostensibly frivolous or vexatious – must be understood as being in furtherance of the constitutional imperative contained in Article 3 (4)(a), which is to the effect that: ‘All citizens of Uganda shall have the right and duty at all times to defend this Constitution’.

It is no doubt, for this reason, that under Article 137 (7), upon a petition being presented, the Constitutional Court must proceed to hear and determine the petition as soon as possible and may, for that purpose, suspend any other matter pending before it. A constitutional petitioner, therefore, is vastly different from a litigant in an ordinary civil case.

The right of an ordinary litigant to bring a claim was described in that case which all law students are familiar with – the 1971 case of Auto Garage and Others v Motokov (No.3) in which it was said that to sustain a cause of action a plaintiff had to show that: i) they enjoyed a right; ii) the right had been violated; and iii) the defendant was liable. In such circumstances, it is entirely appropriate to speak of ‘legal rights’ and ‘liabilities’ – and of litigants ‘desiring the court to decide in their favour’.

A constitutional petitioner, however, stands in a separate position. While they might be ones who present the petition, it is never in fact ‘their case’ which they advance. Rather, it is a constitutional principle or value which they point the court to as being imperiled by a particular Act of Parliament or act or omission by a person or authority. The petitioner can and must be distinguished from the principles or values which they seek to draw the court’s attention to. Once brought, the petition is not actually ‘theirs’ although it may bear their name.

They do not act for themselves but for the Constitution, whose very defence – in terms of Article 3 (4) – relies on precisely such actions. This has – or should have – a number of theoretical and practical (or procedural) implications. One of these direct implications is that, as a minimum, the principles of constitutional interpretation cannot be ‘invariably tempered’ by ordinary rules of evidence and procedure.

In fact, in so far as the Constitutional Court is itself similarly bound by the constitutional duty under Article 3 (4) (not to mention its own specific duties under Article 137), that Court must itself be ready – and feel able to – conduct its own enquiry into the relevant facts in issue, including inviting or requiring, on its own motion, the submission of any evidence (by way of affidavits or otherwise) by any person (s) it might deem germane to the proceedings.

Incidentally, a powerful example in this respect is provided by Uganda’s more recent history relating to constitutional procedure. Once upon a time, there existed a provision - Rule 4 (1) of the Constitutional Court Rules (Legal Notice No.4 of 1996) – which required constitutional petitions to be filed within 30 days of the particular breach complained of.

Fortunately, in the 2003 case of Uganda Association of Women Lawyers & 5 Others v Attorney General the Constitutional Court nullified this rule, based on the clear provisions of Article 3 (4), observing: ‘To the extent that R.4(1) of Legal Notice No. 4 of 1996 imposes restrictions on the right of access to the Constitutional Court which the Constitution itself does not provide for, it is seeking to add to and/or vary the Constitution and therefore to amend it without doing so through the amendment provisions of the Constitution.

It is clearly against the spirit of the Constitution and it is now high time that this Court restored, in full, the citizens right to access to the Constitutional Court by declaring that the rule is in conflict with the Constitution and is therefore null and void.’ These words ring as true in 2024 as they did in 2003.

The irony is that in the Fox Odoi case, the Constitutional Court is now the one which – by way of the invocation of ‘presumption of constitutionality’ – places an additional burden in the path of citizens seeking to assert constitutional principle.

It is time the Constitutional Court of Uganda rediscovered the spirit demonstrated in the Uganda Association of Women Lawyers case. If the unique status of constitutional petitions were truly appreciated, for instance, the idea of petitioners bearing a primary – or indeed heightened – evidentiary burden would quickly stand exposed as belonging to a long-gone era.

Indeed, a discussion could then be held around the possibility of the Constitutional Court adopting a more proactive posture with regard to such petitions, including – for example – the development of an epistolary jurisdiction (accepting petitions presented by way of a simple letter from a citizen); the cultivation of a more robust advisory jurisdiction (in which the court is asked to provide an opinion on a particular constitutional issue) - beyond the limited one envisaged under Article 137 (5); or even a suo moto jurisdiction (in which the court is empowered to take up matters on its own accord, based even on media reports or its own observation of matters of pressing public concern).

There would certainly be no undue or anomalous emphasis – in constitutional matters – on ‘renown evidential rules’ as contained in the Evidence Act or enunciated in Halsbury’s Laws of England. And there would certainly be no suggestion that any one action of any branch of government – whether it be the legislature, executive or indeed the judiciary itself – enjoys a ‘presumption of constitutionality’.

I thank you the readers of this column for your patience as this examination of Fox Odoi was undertaken. We do not leave it here because all that could be said about that decision has been said. Indeed, our examination is no doubt only the start of an analysis which will be undertaken by generations of Ugandans in the years to come.

And, like its similarly ill-fated progenitor Dred Scott, it is to the judgment of history that we hereby submit that most tragic decision in Fox Odoi.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches constitutional law and legal philosophy.

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