Section 15(6)(d) of Uganda’s Equal Opportunities Commission Act declared Unconstitutional

The Constitutional Court of Uganda delivered its judgment in the case Adrian Jjuuko v Attorney General, on 10th November 2016. The case which was filed on 5th January 2009 challenged Section 15(6)(d) of the Equal Opportunities Commission Act. The provision barred the Commission from investigating “any matter involving behavior which is considered to be immoral and socially harmful, or unacceptable by the majority of the cultural and social communities in Uganda”. The Petitioner argued that the Section breaches the right to a fair hearing guaranteed in Article 28 and Article 44 of the Constitution, as well as the rights of minorities as protected in Articles 21 and 28 of the Constitution.

The court ruled that the petitioner, a concerned Ugandan could bring a case before court even if his rights were not directly violated. For this reason the petition was found to be competent.

The court then discussed at length the right to a fair hearing and how it is affected by Section 15(6)(d). It noted that the right to a fair is a fundamental right that is guaranteed by the Constitution, and it is also non derogable under Article 44 of the Constitution. The court considered the purpose of the Equal Opportunities Commission Act which was to give effect to the state’s obligation to eliminate and redress inequalities, and so Section 15(6)(d) had no place in such a law. They also considered the policy document and found that the provision was not in line with both the Constitutional and policy objectives. This is important since it makes it clear that laws should not greatly depart from the policy objectives that give rise to them.

The court noted that a close analysis of the section brings out that the broad mandate of the EOC excludes investigation into certain groups. That if a person who fell within the ambit of the provision appeared before the Commission, they would likely be excluded from any form of hearing. Court then held that a law that precludes a group of people from adjudication on violation of their rights and does not create an alternative forum to hear them out breaches the right to a fair hearing. Court also held that this limitation on the right to a fair hearing is not acceptable and demonstrably justifiable in a free and democratic society.

The court’s discussion of the limitation clause is also instructive. The court stated that ‘demonstrably justifiable’ as used in Article 43 meant that those who seek to rely on the limitation must justify it. The court also specifically discussed the issue of public interest and stated that steps to protect the public from future harm- however potentially serious they may be- have to taken place within a framework which protects the rights of the individual whom it is feared may be capable of doing such harm.

The court also found Section 15(6)(d) to be in violation of articles 20(inherent nature of rights), 21 (equality and freedom from discrimination), and 30 (protection of minorities). On the inherent nature of rights and on freedom form discrimination, the court stated that Parliament could not create a class of ‘social misfits who are referred to as immoral, harmful and unacceptable’ and could not legislate the discrimination of such persons. This is powerful and instructive even as far as criminalising consensual same sex relations and sex work.

Finally, the court declared the provision to be unconstitutional in light of Article 2(2) of the Constitution which subjects every other law to the Constitution.

The case is therefore instructive as regards the rights to a fair hearing and as regards the application of the limitation clause, and the powers of Parliament to legislate discrimination.

The full judgment can be accessed here https://hrapf.org/?mdocs-file=9290&mdocs-url=false