We started, last week, to examine the deeply problematic conclusions reached by the Constitutional Court in Fox Odoi and Others v Attorney General and Others (2024) regarding the right to public participation as established under the 1995 Constitution of Uganda.
Among other things, we considered Section 72 (1)(a) of the South African Constitution (1996) and Articles 10 and 196 of the Kenyan Constitution (2010) and noted that those provisions are really not any more different from the provisions for public participation under the Ugandan Constitution.
Indeed, in many ways, our Constitution – in particular Articles 1, 8A (together with Objective II (i) of the National Objectives), 36 and 38 – arguably provide greater substantive protection than that to be found in the Kenyan and South African Constitutions.
As such, the Court’s suggestion in Fox Odoi – that progressive jurisprudence from Kenya and South Africa was of limited application to Uganda because those decisions were founded on special or unique provisions in those countries’ constitutions – is tenuous, at best.
To be fair to the five justices, in reaching the strange position they did in Fox Odoi regarding public participation, they followed a trend of problematic Ugandan jurisprudence in this respect, already established in the 2018 case of Male H Mabirizi Kiwanuka and Others v Attorney General (Supreme Court) and the 2015 case of Centre for Health, Human Rights and Development (CEHURD) and Others v Attorney General and Another (Constitutional Court).
Essentially, the five justices of the Constitutional Court in Fox Odoi, following the Supreme Court in Male Mabirizi and the Constitutional Court in CEHURD, took the position that the requirement of public participation was met either through representation in Parliament (through their Members of Parliament) or through individual participation in elections and referenda.
Put simply, the Court’s position now seems to be that having voted in Presidential, Parliamentary or Local Council elections, the Ugandan citizen enjoys no significant right of direct or active participation in governance – and must be content to somehow articulate their views through their elected representatives (or through the rare referendum).
The message seems to be: ‘vote osilike’ (vote and then keep quiet). Is this a healthy, just – or even constitutional – state of affairs? Is this not to promote the ‘culture of apathy and silence’ and the ‘supp[ing] up of initiative and guts’ decried by Judge Lugakingira in Mtikila? Is this not to reduce Ugandans to the sullen and hapless condition conjured by Kipling in 1899?
It must also be noted that in reaching this position, the five justices of the Constitutional Court briefly considered the language of Rule 129 (2) of the Parliamentary Rules of Procedure, which refers to a Parliamentary Committee ‘mak[ing] all such inquiries in relation to [a] Bill as it considers expedient or necessary’.
To the court, this rule was framed in terms which were discretionary rather than mandatory. In this respect, the Court observed, at Page 34, Paragraph 87: ‘We do not construe that procedural discretion to impose a constitutional obligation upon the Committee to undertake the extensive and protracted consultations alluded to by the petitioners.’
Respectfully, for the reasons stated above, it is difficult to see how a parliamentary rule (admittedly framed in discretionary terms) could supplant or in any way diminish the clear constitutional imperative under Objective II (i) and Articles 1, 8A, 36 and 38. It must be recalled, in this respect, that the parliamentary power to make its own rules of procedure, under Article 94 (1) is specifically expressed to be: ‘subject to the provisions of [the] Constitution’.
In any case, in terms of Article 2 of the Constitution, that document is the fundamental law of the land, binding on all persons and authorities (including Parliament and its Committees) and superior to all other laws or practices (or procedural rules). Simply, the language of Rule 129 (2) of the Parliamentary Rules cannot obviate the right to meaningful participation envisaged under the 1995 Constitution.
Perhaps nowhere is the soft underbelly of the court’s decision in Fox Odoi with respect to public participation more exposed than at Page 36, Paragraphs 90-91 of the judgment. On the one hand, the court acknowledged, at Paragraph 90, as follows: ‘We do recognize the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view in any democracy, and the duty upon courts to ensure that the majoritarian view does not trample over the fundamental rights of minorities.
So that, even if it might not have changed the trajectory of the Bill in a democratic dispensation where majority views take the day, the minorities’ views ought to be listened to and considered for what they are worth. We most certainly find no plausible reason for the failure by the Committee to give the second and third petitioners audience before it upon their request.’
Here we have the Court acknowledging not just the inadequacy of the room for public participation provided by the Parliamentary Committee (6 days, actually 3 and a half, out of a total of 45 days) but affirming that in fact the Committee denied audience to two Ugandan citizens who had requested an audience before it!
The Parliamentary Committee not only did not keep its doors open long enough to allow all persons in, and all voices and opinions to be heard – it also quite unfortunately shut its doors to those Ugandan citizens it did not wish to hear from. In effect, persons paid by taxpayers – persons supposed to represent and serve those taxpayers – knowingly and deliberately refused to hear what some of those taxpayers had to say concerning a law under consideration.
Having made this extremely significant acknowledgment and observation, the Court then went on to make the following strange and palpably inconsistent statement, at Paragraph 91: ‘Nonetheless, given the evidence on record, which depicts the majority view in the House to have been manifestly in support of the Bill, we do not think that more extensive consultations with sexual minorities would have led to a different legislative result …’.
The anomalous language – and inconsistent logic – contained in Paragraph 91 of the Court’s decision not only maintains the deeply problematic jurisprudence in Male Mabirizi and CEHURD but takes this jurisprudential position to newer – and more dangerous – depths.
The language, and logic, ignores the fact that the guarantee of the right to public participation under Articles 1, 8A (and Objective II (i)), 36 and 38 is an obligation of process rather than of result. Indeed, as noted by the Court in Paragraph 90, it is by no means an insistence or expectation that any one particular result will flow from the participation of citizens.
Rather, it is an insistence that those who want to actively participate in the affairs of government should be fully permitted to do so. As it is, taken to its logical conclusion, the Court’s dictum in Paragraph 91, and indeed its entire discourse from pages 21 to 36 of the decision would, for instance, suggest that there be no need for the scheduled 2026 elections if the broad views of Ugandans can somehow be ascertained around that time.
Or that, on election day, once any particular candidate crosses the required threshold for election the voting be suspended. Or that, in the announcement of election results, once the results from a certain threshold of constituencies have been read and are sufficient to deliver a victory for a particular candidate, there would be no further need to announce the results from the remaining constituencies.
The essence of the stipulation in Paragraph 91 (and indeed the entirety of Pages 21 to 36 of the Court’s decision) is to turn clear constitutional imperatives into mere, and expendable, suggestions – a most unfortunate, and most dangerous, position. When the Parliament of Uganda shuts its doors to citizens – with the sanction of the Constitutional Court – no one should be surprised if and when that Parliament becomes even more contemptuous of democracy and abandons even the pretence at it.
And we are already seeing signs of this. On Friday, April 12th 2024 ( just 9 days after the Court’s decision), for example, the Clerk to Parliament placed a notification at page 11 of The New Vision – on behalf of the Sectoral Committee on Finance, Planning and Economic Development – entitled ‘Public Participation on the Tax and Revenue Bills, 2024’.
In it, the Committee informed the public of the tabling of 5 Tax and Revenue Bills: i) the Income Tax (Amendment) Bill, 2024; ii) the Excise Duty (Amendment) Bill, 2024; iii) the Tax Procedures Code (Amendment) Bill, 2024; iv) the Stamp Duty (Amendment) Bill, 2024 and v) the Value Added (Amendment) Bill, 2024. Members of the public were asked to submit their views on these Bills electronically via an email, which was provided, ‘by Monday, 15th April 2024’.
Copies of the Bills were indicated as being available on the Parliament’s website. One can hardly imagine a more absurd pretence at ‘public consultation’ than this. And yet, this is what Fox Odoi now expressly permits – and, conceivably, even worse.
Instead of ‘empowering and encouraging the active participation of all citizens at all levels in their own governance’ as required by the Constitution, the decision in Fox Odoi encouraged and empowered – effectively sanitized – the impunity of a Parliamentary Committee which had the boldness of denying an audience to citizens who had proactively sought the right to be heard.
I fear that, in the next few years, the conclusions reached in Fox Odoi on public participation will operate to provide newer and even more innovative bases for the exclusion of Ugandans from any real or meaningful participation in their governance.
United States Supreme Court Justice Felix Frankfurter once observed that ‘[i]n a democracy, the highest office is the office of citizen’. Evidently, following Fox Odoi, it is difficult to sustain this proposition in the Ugandan context. In finding as they did in this case, the Constitutional Court of Uganda – like the US Supreme Court in the infamous case of Dred Scott v Sandford – diminished the status, power, and promise of constitutional citizenship.
In the column next week, we shall explore the other significant ways in which the Fox Odoi case – like Dred Scott – represents a most restrictive, disempowering – and dangerous – reading of constitutional text.
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.
