THE QUESTION OF CONSTITUTIONAL

INTERPRETATION IN UGANDA.
Kitaka Aziz1

Abstract
In light with the principles of constitutional interpretation and
construction, the purpose of this paper is to expound on the principles
of constitutional interpretation as they are applied by the Ugandan
judiciary. It was stated by Chief Justice Marshall in Marbury v Madison
that, "It is emphatically the province and duty of the Judicial
department to say what the law is''2 Therefore, am going to start with, (1)
An introduction while defining a "constitution", (2) The Question of
constitutional interpretation while highlighting the laws for the same, (3)
The Question of constitutional interpretation and Enforcement while
drawing the difference between the two, (4) Introduce the principles and
Approaches to Constitutional interpretation, (5) Analyse how the
Ugandan judiciary has adhered to the fundamental principles of
constitutional interpretation and lastly, (6) a conclusion.

1. Introduction:
What is a constitution?

A constitution 'marries power with justice', it makes the operation of power

procedurally predictable, upholds the rule of law, and places limits on the
arbitrariness of power. In Uganda, the constitution is looked at as very useful legal
document and locally termed as, "Ssemateeka wa Uganda".

Prof. G.W. Kanyeihamba defines a "constitution" as, "the basic and fundamental
principles which the in habitants of the state consider to be essential for their
governance and well being.3 The Section 2 of the Interpretation Act defines a
"Constitution" as, "the constitution of Uganda as by law established"

The 1995 Constitution of Uganda derives its supremacy from Article 2(1) which
provides that, "the Constitution is the supreme law of Uganda and shall have
binding force on all authorities and persons in Uganda". Article 2(2) of this
constitution goes ahead by providing that, " If any law or any custom is inconsistent
with any of the provisions of this constitution, the constitution shall prevail, and
that other law or custom shall...be void".

2. Constitutional Interpretation:
Justice Remmy Kasule defined the term "constitutional interpretation" in the
case of Male Mabirizi v Attorney General, he stated at page 232 that, "This is to
ascertain the meaning of the specific provisions of the constitution....or any act

1
L.L.B Makerere University, kitakaaziz11@gmail.com
2
5 U.S (1 Cranch) 157, 177 (1803)
3
Pro. G.W. Kanyeihamba, Constitutional Law and Governance in Uganda, 1975
or omission by anyone or authority and then decide whether, given the
ascertained meaning, there is contravention and/or inconsistency with an alleged
provision of the Constitution".4

2.1 The Question as to the interpretation of the constitution;

The Question as to interpretation of the constitution is provided for under Article

137(1) which states that, " Any question as to the interpretation of the
constitution shall be determined by the Court of Appeal sitting as the
Constitutional court". So pursuant to this clear provision, Wambuzi C.J succinctly
and authoritatively expressed in Ismail Serugo v. Kampala City Council and
Anor5 that,

"In my view, for the Constitutional court to have jurisdiction,

the petition must show on the face of it that the
interpretation of the constitution is required. It is not
enough to allege merely that a Constitutional provision has
been violated."
Under Article 137(3), "any person who alleges that an Act of parliament or any
other law or anything is inconsistent with the constitution, may petition the
constitutional court for a declaration". This provision can be read together with
Rule 3 of the Constitutional Court (Petitions and References) Rules, 2005,
which provides that, "any person who alleges that any law or Act of parliament is
inconsistent with the provisions of the constitution can petition the constitutional
court for a declaration...". Thus it was stated in the case of Uganda Law Society v
the Attorney General6, where one of the points of contention was "Whether the
Constitutional Court had the jurisdiction to pronounce themselves on the legality
of an Act amending the constitution, Constitutional (Amendment Act) No. 13 of
2000". The Constitutional Court held itself as having the jurisdiction to interpret an
Act amending the constitution by virtue of Article 137(3).

However, for matters concerning references to constitutional court regarding

constitutional interpretation, Article 137(5) of the Constitution provides that,
"Where any question as to the interpretation of the constitution arises in any
proceeding in a court of law..., the court may..refer the question to the
constitutional court.." The Constitutional Court (Petitions and References)
Rules also provide under Rule 18 that, "a reference to the court regarding any
question as to the interpretation of constitution under Article 137(5) of the
Constitution is to be made, were the original court submits the reference in terms
of Form 2 of the schedule, stating that specific questions or issues to be answered
or resolved by the Constitutional court".7 Thus, in the case Joseph Ekemu and

4
Constitutional Petition No. 49 of 2017 at page 232
5
Constitution Appeal No. 2 of 1998
6
Constitutional Petition No. 8 of 2000
7
Rule 18, Constitutional Court (Petitions and References) Rules, 2005
Kadidi v Uganda8, where the High Court had referred the case at hand to the
Constitutional court under Article 137(5). The Constitutional court cited Rule 3(1)
of the Interpretation of the Constitution (Procedure) Rules, 1992 (now Rule 18 of
the Constitutional court (Petition and References) Rules, 2005), and it was stated
that, "the court making the reference to the Constitutional Court must therefore
comply with the above provision...in the/any case before making the intended
reference".

2.2 Question of Constitutional interpretation and Enforcement: Interpretation vs

Enforcement;

Here, my main emphasis is to draw a distinction between "Constitutional

interpretation" and "Enforcement of the constitution". Therefore, it has always
been the modus operandi of the constitutional court of Uganda to distinguish the
two in many legal cases. It is de facto that this question has always been one of a
controversy in the constitutional court and it is de jure that the court has always
been sticking down petitions regarding constitutional enforcement rather than
constitutional interpretation which the constitutional court is mandated to handle.

Constitutional Interpretation: Article 137(1) of the Constitution gives the Court

of Appeal sitting as the Constitutional Court powers to determine the questions
regarding Constitutional interpretation.

Enforcement of the Constitution: Article 50 of the constitution deals with the

enforcement of rights and freedoms by providing that, "any person who claims that
a fundamental right or freedom guaranteed has been infringed can apply to a
competent court for redress".

Therefore, it is the above two constitutional provisions which draw a distinction

between Constitutional interpretation and Enforcement. So it is incumbent for a
person claiming that a fundamental right or freedom has been infringed to apply to
any competent court in Uganda for redress "BUT" not Constitutional Court because
the Constitutional Court only handles matters regarding constitutional
interpretation i.e. a person cannot move to the Constitutional calling for redress of
a fundamental right or freedom which has been infringed. Thus in Ismail Serugo v
Kampala City Council and Anor9, Mulenga JSC stated that;

"It follows that a person who seeks to enforce a right or freedom

guaranteed under the Constitution, by claiming redress for its
infringement,..... has to apply to any other competent court. The
Constitutional Court is competent for the purpose under Article
137(3)".

8
Constitutional Reference No.1 of 2000
9
Constitutional Appeal No. 2 of 1998
4. THE PRINCIPLES AND APPROACHES TO CONSTITUTIONAL INTERPRETATION;

R. Randall Kelso stated in his article10 that;

"With regard to constitutional interpretation, the judge must

decide, among other things, how much weight to give arguments
about the plain-meaning of the constitution's text, the text's
purpose or spirit, and historical evidence concerning the intent of
framers and rectifiers of the constitution".

4.1 Principles of Constitutional Interpretation:

In the celebrated constitutional petition case of Male Mabirizi v Attorney

General11, Justice Kenneth Kakuru clearly highlighted the principles of
constitutional interpretation. The learned justice stated at page 309 that, " Let me
restate some of the time tested principles of Constitutional
interpretation....These have been laid down in several decided cases by the
Supreme Court, this Court and Courts in other jurisdictions".

He then stated the principles from page 310-313 as summarized below;

1. In determining the constitutionality of a legislation, it's purpose and effect

must be taken into consideration.
2. The entire constitution has to be read as an integral whole.
3. Provisions containing fundamental rights should be given a dynamic,
progressive, liberal and flexible interpretation.
4. Where words are clear and unambiguous, they must be given their primary,
plain or natural meaning.
5. Where words are imprecise or ambiguous, a liberal, generous or purposeful
interpretation should be given to it.
6. The history of the country and legislative history of the Constitution is also
relatively important.
7. The National Objectives and Directive Principles of State Policy are also
relevant.
8. The Constitution must be interpreted as a living document.....etc

4.2 Approaches to Constitutional Interpretation:

The rules described above may be said to constitute the mechanical tools used to
find the meaning of constitutional provisions. However, the choice of tools one
employs, is to the great extent informed by the approach or judicial philosophy of
a particular judge to the question of Constitutional interpretation and these
include;

10
R. Randall Kelso, Styles of Constitutional Interpretation and the four main Approaches to Constitutional
Interpretation, 29 Val: U.L. Rev. also available at http://scholar.Valpo.edu/Vulr/Vol 29/iss1/2.
11
Constitutional Petition No.49 of 2017.
Textualist and Strict construction;
This suggests that decisions should be based on the actual words written in the law
if the meaning of the word is unambiguous.

Contextualist approach;
In De Clerk and Suct v. Du Plassis and Anor, it was stated that this approach
seeks to, "examine the broad context in which the provision at issue was
promulgated, arguing that in some import aspects, respect, the provision can be
understood relative to its context".12

Originalist Approach;
The theories under the originalist approach include, "The original intent" and "The
original meaning" which both hold that, interpretation of written constitution is
(should be) consistent with what was meant by those who drafted and ratified it.
Professor William Crosskey states in his book, Politics and the Constitution that;
"[the reason and spirit of a law]; or the cause which moved the
legislator to enact it is the most universal and effectual way of
discovering the true meaning of a law"

Pragmatic approach;
This theory tends to focus on how the meaning came into being hence the idea of
Constitutional growth and evolution. Chief Justice Taul Warren exemplified this
when he said, "the constitution needs to be interpreted in light of evolving
standards of decency that mark the process of a maturing society".

5. HOW THE JUDICIARY IN UGANDA HAS ADHERED TO THE FUNDAMENTAL

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION SINCE THE PROMULGATION
OF THE 1995 CONSTITUTION.

It is relatively true that the Ugandan courts and basically the Constitutional court
and the Supreme Court of Uganda have time to time adopted the fundamental
principles of constitutional interpretation since the promulgation of the 1995
constitution. This wave of compliance to these principles stretches from the
landmark case of Major General Tinyefunza v. Attorney General to date. This
can be analysed below;

The Constitution must be interpreted as a whole. Therefore, while interpreting

the constitution, no single provision is to be segregated from others. This can be
expressed under a Latin phrase, "Nemo aliquam partem recte intelligere potest
antequam totum perlegit", which means "no one can properly understand a part
until he has read the whole". Thus in Major general Tinyefunza v Attorney
General13, Manyindo DCJ cited the case of South Dakota v North Carolina14 and he

12
(1994) 6 BLR 124, at page 129
13
Constitutional Petition No.1 of 1996
thus held that the entire constitution has to be read as an integrated whole and no
particular provision destroying the other but each sustaining the other. This same
principle was upheld in the case of Male Mabirizi v Attorney General (supra),
were Lady Justice Elizabeth Musoke stated at page 553 that, "the entire
constitution has to be read together as an integral whole and no particular
provision destroying the other but each sustaining the other”.

Words must be given their natural and ordinary meaning where they are not
ambiguous. Where words are clear and unambiguous, courts must give them their
plain, ordinary and natural meaning. The latin maxim "Verbis legis non est
recedendum" stresses that, "from the words of the law there is not any depature".
This principle was applied in the case of Onyango Obbo and Anor v. Attorney
General15, were Twinomujuni JA stated that, "words must be given their natural
and ordinary meaning where they are not ambiguous". In the recent case of Male
Mabirizi v Attorney General (supra), Justice Cheborion Barishaki at page 708
also upheld the same principle while interpreting the constitution. The learned
justice cited different cases like Salvatori Abuki v. Attorney General16 and
Masalu Musene and others v Attorney General were the courts upheld the same
principle. The latin maxim, "Interpretatio Cessat in Claris" also upholds this
principle. It means that, "Interpretation stops when a text is clear".

The Preamble and Directive Principles also offer some guidance in

interpretation of the 1995 constitution. This must be taken into account to
supply the intention of the framers without violating the meaning of the words
used. This can also be expressed under the latin maxim, "Animus hominis est
anima scripti" which means that, "the intention is the soul of an instrument". Thus
in Tinyefunza v Attorney General (supra), Justice Egonda Ntende stated that;
"the binding values in this constitution are set forth in the
Preamble.....The first paragraph states, "The following objectives
and principles shall guide all organs and agencies of the state...and
persons applying or interpreting this constitution or any other
law..."

Where the language of the Constitution is not precise or ambiguous, then a

liberal, flexible and purposeful interpretation must be given to cure the
ambiguity. The rationale for this is that the Constitution is not an ordinary statute
capable of amendment. This principle was upheld by Okello J in the case of
Salvatori Abuki v. Attorney General (supra), were he stated that; "If the purpose
of the statute infringes a right guaranteed by the constitution, that statute is
declared unconstitutional". In the recent decision of Male Mabirizi v. Attorney
General, Justice Kenneth Kakuru stated that, "the principle of purposes and

14
192 US 268 (1940) 448.
15
Constitution Petition No. 15 of 1997
16
Constitution Petition No. 2 of 1997
effects must be considered and if the purpose and effect is inconsistent with a
provision of the Constitution, the Act shall be declared unconstitutional".

The Constitution must be interpreted as a living document. This is also known as

"The Living Tree Doctrine". This cannon enjoins the courts to interpret the
Constitution having in mind present day circumstances. This is to cater for the
present generation and those unborn. Thus in Tinyefunza v Attorney General
(supra) Oder JSC cited the case of Unity Dow v Attorney General and remarked
that, "the constitution is the supreme law of the land and it is meant to serve not
only this generation but also generations yet unborn, therefore courts must
breathe life into it from time to time". Also in Male Mabirizi's case, Justice
Owiny Dollo while citing Unity Dow's case stated that, "...the constitution cannot
be allowed to be a lifeless museum piece and courts must breathe life into it from
time to time".

The Harmonisation of Conflict principle. This means that where two

constructions are possible and one is very restrictive of the guaranteed rights and
the other is permissive then the latter is to be preferred of the two. This principle
was applied in the case of Saleh Kamba v. Attorney General17 were it was stated
that, "the principle of harmonisation has to be brought into play where two
constructions are in conflict or restrictive of the guaranteed rights. Also in Male
Mabirizi v. Attorney General (supra), Justice Elizabeth Musoke cited the case of
Mtikila v. Attorney General of Tanzania18, were the court applied the
harmonisation principle and held that, "When the provision of the constitution
enacting a fundamental right appears to be in conflict with another provision of
the constitution....the principle of harmonisation has to be called in aid".

International Human Rights Conventions and Treaties may be used when

interpreting the constitution. Article 45 of the Constitution caters for rights not
specifically mentioned and the court may use aids in construction that reflect an
objective to search for correct construction. Uganda has signed many International
Conventions and Treaties on Human Rights and it is therefore the solemn duty of
the courts to comply with the provisions of the Conventions in Constitutional
Interpretation. Thus in the case of Susan Kigula and ors v. Attorney General19,
the court cited the case of Unity Dow v Attorney General(supra) were it was noted
that, "despite the fact that conventions do not confer rights on individuals within
a state until Parliament has legislated them into law, however, those conventions
may be referred to as an aid to constitutional construction".

17
Constitutional Petition No. 16 of 2013
18
(10 of 2005)[2006]TZHC5
19
Constitutional Petition No.6 of 2003
Narrow construction to be preferred in case of derogation from a guaranteed
right. Rights mentioned in Article 44 are stated to be non-derogable, the rest can
be limited. Therefore in cases regarding derogations from fundamental human
rights, the narrow and strict construction has to be considered. Thus in Dimanche
Sharon and ors v. Makerere University20, the court held that, "derogations from
fundamental human rights should be given a narrow and strict construction". Also
in Susan Kigula and ors v. Attorney General(supra), the constitutional court held
that is a well known rule of interpretation that to take away a right given by
common law or statute, the legislature should do that in clear terms devoid of any
ambiguity.

6. CONCLUSION;
Any theory of constitutional interpretation must assume the
existence of Judicial discretion. There can be no interpretation
without discretion. Aharon in his article, "Hermeneutics and
Constitutional Interpretation", defines "judicial discretion" as the
power of the judge to choose among several interpretative
alternatives, each of which is lawful21. He continues by stating that,
'...the judge will not act mechanically but instead will weigh, reflect,
test and study.
Therefore, it should be noted that all the principles followed in
Constitutional Interpretation uphold the notion that a Constitution is
Sui Generis, the supreme law of the land and a grand norm where all
other statutes derive their legality from. This means that the
Constitution should be interpreted in a different manner compared
to other statutes.

20
Constitutional Cause No.1 of 2003.
21
Barak, Aharon, "Hermeneutics and Constitutional Interpretation" (1993). Faculty Scholarship Series. 3701.
https://digitalcommons.law.yale.edu/fss_Papers/3701
 REFERANCES

1. PROF. GW. KANYEIHAMBA, CONSTITUTIONAL LAW AND GOVERNANCE IN

UGANDA,1975.
2. MORRIS AND READ, UGANDA AND DEVELOPMENT OF IT'S LAWS AND
CONSTITUTION,1966, Vol.13.
3. WILLIAM CROSSKEY, POLITICS AND CONSTITUTION, 1953.
4. R. RANDALL KELSO, STYLES OF CONSTITUTIONAL INTERPRETATION AND THE
FOUR MAIN APPROACHES TO CONSTITUTIONAL INTERPRETATION, 29 Val:
U.L.Rev.
5. BARAK, AHARON, HERMENEUTICS AND CONSTITUTIONAL INTERPRETATION
(1993). Faculty Scholarship Series.3701.
(http://digitalcommons.law.yale.edu/fss_papers/3701.

LAWS
1. UGANDA CONSTITUTION 1995
2. INTERPRETATION ACT CAP 3, 1976
3. CONSTITUTIONAL COURT (PETITIONS AND REFERENCES) RULES, 2005.

KITAKA AZIZ, BACHELOR OF LAWS, MAKERERE UNIVERSITY.

Kitakaaziz11@gmail.com