Last week we had the rather unpleasant task of having to announce the appearance of a new ghost on the Ugandan legal horizon – one conjured by the Constitutional court of Uganda in its decision in Innocent Ngobi Ndiko and Others v Attorney General and Another (Constitutional Petition No.23 of 2020).
It is a ghost with several faces, in this sense one-upping than the famed Roman two-faced deity, Janus. In our last column, we identified one of these faces as being the subordination of constitutional principle to majoritarian considerations.
Today, we trace the contours of yet another one of the faces of the Innocent Ngobi Ndiko phantom: an unprincipled failure, or unwillingness, to refer to the Constitutional court’s own relevant previous jurisprudence.
The legal system in Uganda rests on the doctrine of precedent. Courts must be guided by decisions they, and tribunals superior to them, have issued previously. The Constitutional court is, therefore, bound by its previous decisions, as well as those of the Supreme court (in its capacity as an appellate court in constitutional matters).
This helps to ensure the integrity and, perhaps more importantly, legitimacy of the legal system. Unfortunately, the majority decision in Innocent Ngobi Ndiko is of diminished legitimacy, insofar as it fails to credibly demonstrate its rational connection to the court’s own relevant prevision decisions touching on the constitutional principles in issue.
We can take but one example in this regard – the court’s approach to the question of individual liberty under the 1995 Constitution (especially vis-à-vis wider communal interests) – which was manifestly inconsistent with the stance adopted in decisions such as Adrian Jjuuko v Attorney General (Constitutional Petition No.1 of 2009) and Women’s Probono Initiative v Attorney General (Constitutional Petition No.12 of 2021).
In Adrian Jjuuko, the Constitutional court unanimously struck down Section 15 (6)(d) of the Equal Opportunities Act under whose terms the Equal Opportunities Commission had been forbidden from investigating ‘any matter involving behaviour which [was] considered to be i) immoral and harmful or, ii) unacceptable, by the majority of the cultural and social communities in Uganda’.
In finding the impugned provision inconsistent with Articles 20, 21, 28 and 43 of the Constitution, the court observed that: ‘In a society governed by the rule of law, and according to human rights principles, steps to protect the public from potential future harm – no matter how potentially serious it may be – should always take place within a framework which also protects the human rights of the individual whom it is feared may be capable of doing such harm’ [at page 15 of the decision].
The court concluded that the provision in question violated the Constitution by: ‘i) Creating a class of social misfits who [were] referred to as immoral, harmful and unacceptable; ii) legislating the discrimination of persons said to be immoral, harmful and unacceptable; and iii) den[ying] access to justice to that class/section of people by prohibiting the Equal Opportunities Commission from investigating persons who it adjudge[ed] immoral, socially harmful and unacceptable’ [at page 17 of the decision].
This was an extremely strong statement of principle by the Constitutional court, which emphasized the notion that the constitutional rights of the individual deserved protection even in the context of those majoritarian impulses which had been reduced into legislation.
The Constitutional court was even more emphatic in its defence of the value of personal liberty and autonomy in its decision in decision in Women’s Probono Initiative. In dismissing the petitioner’s constitutional challenge against polygamy, the court noted that: ‘Crucially, polygamy and monogamy are not personal characteristics but are conditions which result from the exercise of a Constitutionally protected freedom of choice.
The importance of the legal provisions which allow citizens to make marriage choices must be underscored. Article 31(l) & (3) which provides for the right to marry and found a family … protects personal autonomy and privacy, and it recognizes marriage and family formation as core aspects of personal liberty.
It allows individuals to choose their partners and shape their private lives without unjust state interference. The article therefore prevents forced marriages or state-imposed restrictions (e.g., bans on interracial or interfaith unions) …’ [at pages 18-19 of the decision].
The court later in its decision again stressed the value of individual liberty, observing: ‘It must be emphasized that the practice of polygamy in Uganda is a matter of choice. This underscores the principle of non-interference with citizens’ exercise of their individuality, the essence of human rights.
Coercing citizens into practicing monogamy for example, would be antithetical to the very idea of human rights’ [at page 37 of the decision]. Here, too, we have a very strong articulation of individual liberty and autonomy as protected under the 1995 Constitution.
In Innocent Ngobi Ndiko, on the other hand, the majority of the Constitutional court effectively subordinated the relevant constitutional rights to a consideration of majority views, as especially reflected in the court’s strained mathematical calculations of the ‘public opinion’ content in the Memorandum presented by the Interreligious Council of Uganda (IRCU): ‘Going by the … national census report, it means the IRCU Memorandum was presented on behalf of a total of 43,525,967 persons (excluding what is categorized as other religion), which is 94.8% of the total population of Uganda.
This buttresses my earlier finding based on the constitutional provisions that the national interest of Uganda and the common good is protection of the family, marriage and the children.’ [at page 38 of the decision].
Evidently, the court in Innocent Ngobi Ndiko had very little regard for individual autonomy and freedom as constitutionally protected principles. Clearly, the approach adopted in Adrian Jjuuko and Women’s Probono Initiative, on the one hand, is very distinct from that taken in Innocent Ngobi Ndiko, on the other.
Indeed, the two visions of the freedom of the individual under the 1995 Constitution represented by these separate classes of cases pull in very different, and perhaps irreconcilable, directions. It is particularly noteworthy, in this regard, that the Women’s Probono Initiative decision was handed down on 10th July 2025, while that in Innocent Ngobi Ndiko was rendered on 18th August 2025.
The decisions, therefore, are only about a month apart. Moreover, two of the Justices in Innocent Ngobi Ndiko were also on the panel which delivered the Women’s Probono Initiative judgment.
This makes the divergence in the approaches adopted by the two decisions – on the same constitutional provision (Article 31) – even the more significant. These factors make it even more difficult to explain how the Constitutional court in Innocent Ngobi Ndiko could omit a reference – even of the slightest, most cursory and passing nature – to the decision in Women’s Probono Initiative.
The decisions both deal with the scope and application of the notion of ‘free consent’ as stipulated under Article 31 of the Constitution and yet, like the proverbial ships passing by at night, now exist in our jurisprudence with absolutely no indication as to how, if at all, they relate to each other.
This forces the question: what is the constitutional law of Uganda with regard to the rights and freedoms of the individual? What are we to teach students of constitutional law in this regard? What are lawyers to advise their clients? How are Ugandans to order their lives?
The positions of the court (especially the Constitutional court) cannot, like episodes of a Netflix series, depend on the flavour of the latest week or month. There must be a clear and demonstrable link threading newer decisions of the Constitutional court with previous decisions of the Court touching on, or related to, the same questions.
For the legitimacy of the Constitutional court’s decisions to be enhanced, they must have a ‘golden thread’ in terms similar to that described by Viscount Sankey LC in the 1935 English case of Woolmington v DPP in which he pointed out: ‘Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception …. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’
This was – or is still – the position in the United Kingdom. So, what is the ‘golden thread’ in the jurisprudence of the Ugandan Constitutional court? Is there a discernible, consistent idea – a view of the Constitution, and its meaning and application – which can be distilled from the court’s various decisions?
I am not too sure. Certainly, the Constitutional court can depart from its previous decisions – as long as it does this clearly and unequivocally, and with well-articulated reasons. The Supreme court of Uganda provided a good example in this regard in the 2016 Amicus Curiae application of Professor Oloka-Onyango and 8 Others when it observed: ‘We note that this court’s holding in Attorney General v. Silver Springs Hotel Ltd & Others, (Supra) is no longer good law.
This is evidenced by the court’s subsequent acceptance of amicus applications brought before it … In line with Article 132(4) of the Constitution which permits this court to depart from its previous decisions where it deems it right to do so, we find and hold that the decision of Attorney General v. Silver Springs Hotel Ltd (supra) on the law governing amicus curiae is no longer good law.’
The Supreme court could have danced around the Silver Springs Hotel case in the way the Constitutional court seems to be committed to doing with the Adrian Jjuuko decision.
However, it chose the path of candour and transparency, in explicitly overruling its own previous decision. The Constitutional court should similarly have the courage of its convictions when it comes to clearly departing from positions it has previously held, such as the clear stance it adopted in Adrian Jjuuko and, even more recently, Women’s Probono Initiative.
This court, which stands in class of its own in Uganda’s judicial system – being tasked with interpreting the supreme law of the land – must be a tall lighthouse, illuminating the meaning of that document for the guidance of all stakeholders, present and future.
Unfortunately, by failing – or neglecting – to offer a coherent framework for all its decisions touching on the same subject matter, the Constitutional court increasingly appears to be more in the mould of the infamous ‘Tower of Babel’, speaking diverse and alien languages regarding the meaning of the 1995 Constitution.
Thus far, we have pointed out two faces of the ghost of Innocent Ngobi Ndiko: i) the subordination of constitutional principle to majoritarian considerations; and ii) an unprincipled failure, or unwillingness, to refer to the court’s own relevant previous jurisprudence.
In the column next week, we shall identify yet another face of this most unwelcome juristic apparition.
The writer is senior lecturer and director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and International Law.