Uganda Association of Women Lawyers (FIDA-UGANDA) & Another v Ndiko & 5 Others (Constitutional Application 9 of 2022) [2024] UGCC 26 (12 December 2024)

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## THE REPUBLIC OF UGANDA

#### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

#### CONSTITUTIONAL PETITION APPLICATION NO. Og OF 2022

Corom; Egonda Ntende, Hellen Oburo, Eva Luswoto, Kazibwe Kawumi, Asa Mugenyi, JCC

## (Arising from Constitutional Petition No.23 of 2O2Ol

## 1. UGANDA ASSOCTATTON OF WOMEN LAWYERS (F|DA-UGANDA)

2. INITIATIVE FOR STRATEGIC LITIGATION !N AFRTCA (ISLAI APPLTCAN rS

PETITIONERS

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## BETWEEN

- T. INNOCENT NGOBI NDIKO - 2. NICHOLAS OPNO - 3. ISAAC SSALI MUGERWA - 4. DR. BUSINGYE KABUMBA - 5. STELLA NAKAGIRI

#### AND

### ATTORNEY GENERAL OF UGANDA RESPONDE:tlT

#### RULING OF THE COURT

The Applicants filed a Notice of Motion with supporting affidavits under Articles 20,21,26,31(1),32(I),33(2), (3) and (5) of the Constitution of the Republic of Uganda, Sections LL,LA (2) (C), 33 and 39 (2) of the Judicature Act, and Rules 5, 6,9 and 10 of the Judicature (Amicus Curiae) Rules,2022.

- The Applicants seek for orders that: 30 - 1. This Court be pleased to grant them leave to intervene in Constitutio ral Petition No.23 of 2O2O as Amicus Curiae. - 2. This Court be pleased to grant them leave to address it by way of oral and written submissions at the hearing of the Petition on a joint Amicus Cu riae. - 3. Costs of the application be borne by each party.


<sup>5</sup> The grounds of the application are that:

L The 1" Applicant is a Non-Governmental Organization focusing on the protection and realization of the rights of women in Uganda through legal, policy and social advocacy, legal aid, community sensitization and public interest litigation and has handled cases involving gender-based violence, economic abuse and property disputes during separation and Civorce of marital partners.

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- 2. The 1" Applicant was involved in legislative advocacy for the enactment of progressive laws such as the Domestic Violence Act, 20L0, the Succession Amendment Act, 2O2I and the Marriage and Divorce Bill, 2OL7 all geared towards achieving gender responsive reforms. - 3. The L't Applicant was the lead petitioner in Uganda Association of Women Launyers & Others V AG. Constitutional Petition No.2 of 2003 in which this court determined the constitutionality of some provisions !n the Divorce Act. - 4. The 1" Applicant has for the forty-eight years of service in the gender and human rights spaces, attained expertise on women's social and economic rights which they seek to use to offer guidance to this court as it determines the head petition. - 5. The 2no Applicant is a regional non-governmental organisation based in South Africa with a regional focus and expertise on Women's human rights, social and economic rights and Public interest litigation gathered since its inception in 2014. - 6. The 2no Applicant has on account of her expertise in the area of gender equality, human rights, women's rights and social justice previously been admitted as amicus curiae in various cases before the courts of law in Kenya which expertise'they seek to use to offer guidance to this court as it determines the head petition.


- 7. The Applicants are independent and impartial experts and seek leave t.r provide intervention on the following points of Law; - a) The extent of the Court's obligation to provide a remedy that provides for legal certainty and the duty to ensure that the Court's decisions do not create a lacuna. - b) Demonstration of the historical link between matrimonial laws, gender discrimination and women's access to matrimonial property. - c) The question of whether courts have an obligation to remedy past and ongoing gender discrimination, and the importance and utility of an order suspending an order of invalidity of the provisions in the Divorce Act as a remedy in constitutional Iitigation.

20 Affidavits in support of the application were deposed by Liliane Byarugaba Adriko the Chief Executive Officer of the 1" Applicant, and Sibongile Ndashe the Executive Director of the 2nd Applicant

The Application was opposed by the Respondent through an affidavit sworn by Sam Tusubira, a State Attorney in the Attorney General's Chambers. The Respondent contends that Constitutional Application No.09 of 2022 is incompetent and incurably defective only meriting dismissa! by the cottrt.

It is further contended that the submissions sought to be made by the Applicants will not aid or give assistance to the court that the parties to the Petition would not otherwise render to the court.

30 The Respondent further contends that based on the core mission of the 2nd Applicant, it is partisan and not neutral on the matters before court since its core vision and mission is to strengthen civil society to respond to threats and attacks that weaken civic space and human rights.

## Representation

35 At the hearing of the Application on Lzth November 2024 the Applicants were represented by Ms. Victoria Mufumba while the Respondent was represented by Mr. Allan Mukaffia, a State Attorney in the Attorney General's Chambers.

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## <sup>5</sup> lss,.re for determination by the court

Whether the application discloses sufficient grounds for the Applicants to be granted leave to intervene as Amicus Curiae

## Deterrnination by the court

I he background to the Application is that the Petitioners in Constitutional Petition No.23 of 2020 are aggrieved by several provisions of the Divorce Act contending that they are inconsistent with various Articles in the L995 Constitution of the Republic of Uganda. 10

The Petitioners contend that section 4 of the Act which requires a Petitioner in divorce proceedings to prove grounds for divorce is inconsistent with Artic|es20,2L,23,24,27,29,31and44 of the Constitution. The Petitioners also challenge Section 5 of the Act which requires a Petitioner to name a corespondent and the exceptions to it as inconsistent with Articles 20,2L,23,3L and 44 of the Constitution.

Sections 6,7,8,30,33,38 of the Divorce Act which empower the court to make inquiries into the marriage sought to be terminated and the regulation of the proceedings by the Civil Procedure Act and Rules are said to be inconsistent with Articles 20,2L,23,24,27,29,31 an d 44 of the Constitution. 20

Of particular interest to the Applicants, is the contention by the Petitioners that sections 15, LG and 18 of the Divorce Act that relate to judicial separation and protection orders. The Petitioners contend that the provisions are rnconstitutiona! as against husbands because they tend to protect wives which unequal treatment contravenes Articles 20,21 and 31(L) of the Constitution.

## The Law on Amicus Curiae

The law on amicus curiae in Uganda is The Judicature (Amicus Curiae) Rules 2022 S.l. No.54 of 2022. Rule 3 thereof defines amicus curiae as: 30

"A person or organisation that is not a party to a suit but who participates in the litigation by providing the court with important information intended <sup>t</sup>r assist the court in making an informed decision". \


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- 5 The requirements for a person or organisation to be admitted as an amicus are laid out in Rule 5 of the Rules. The requirements are that - a) The person or organisation is neutral and impartial - b) The court is satisfied that the submission of the person or organisation wil! give assistance to the court that it would not otherwise have; - c) The points of law or facts submitted by the person or organisation are novel and will aid the development of jurisprudence; - 15 d) The interest of the person or organisation constitutes fidelity to the !aw; - e) The submissions of the person or organisation draw attention to relevant matters of law that are useful, focused and principled; - 20 f) The participation of the person or organisation is in the public interest; and - g) The person or organisation has demonstrable expertise or knowledge in the area under dispute. - 25 Rule 8(U of the Judicature (Amicus Curiae) Rules allows a party to a suit to object to the admission of a person or organisation as amicus curiae where that party considers that - a) The applicant does not have sufficient expertise; - 30 b) The applicant is introducing new evidence; - c) The applicant is not impartial or is biased or hostile towards one or more of the parties; or - 35 d) The applicant, through previous conduct, appears to be partisan on the issue before court.

We have carefully perused and considered the application, affidavits filed by the parties, submissions by the Applicants and reviewed the case law on the subject of amicus Curiae.

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#### **Demonstrable expertise** $\mathsf{S}$

I<sup>+</sup> cannot be disputed that both applicants have gathered considerable expertise in the area of gender equality, gender based violence and in the handling of property disputes arising from instability in matrimonial settings. The involvement of the 1<sup>st</sup> Applicant in Constitutional Petition No.2 of 2003 and the submissions made by the 2<sup>nd</sup> Applicant in cases before the High Court and Supreme Court of Kenya speak to their expertise on the subject in the head petition.

## **Neutrality/Impartiality**

Black's Law Dictionary, 5<sup>th</sup> Edition at Page 939 defines the term 'neutral" as *k* eing indifferent; unbiased; not engaged on either side; not taking an active 15 part with either contending sides. The term "*impartial*" is defined as favouring neither side, disinterested; treating all alike; unbiased; equitable; fair and just.

We are alive to the fact that the $1^{st}$ Applicant was the lead Petitioner in Constitutional Petition No.2 of 2003 in which this court addressed the imbalance in the grounds respective parties to divorce proceedings were required to prove in divorce proceedings.

The 1<sup>st</sup>Applicant now seeks to address the court not on the alleged unconstitutionality of the provisions of the Divorce Act impugned by the Petitioners, but on the quality and effects of the possible orders court can make in case the provisions relating to judicial separation and protection orders are rendered unconstitutional. We find the Applicants to be impartial given the perspectives to the Petition they seek to bring to the attention of the court. Being feminist advocacy groups does not strip the Applicants of objectivity to the questions before the court in the head petition.

Similarly, the 2<sup>nd</sup> Applicant's objectivity to the issues before the court cannot 30 be determined from her Mission and Vision Statements as contended by the Fespondent. In fact, under Article 4 (a) every citizen of Uganda and noncitizen has an obligation to defend the Constitution and by interpretation. human rights. That is one of the core missions of the 2<sup>nd</sup> Applicant.

# Novelty of the points of law

The Applicants seek to share information not on how the court should determine the contentious issues raised by the Petitioners, but on aspects not addressed by either party to the Petition. The aspect of substantive eguality as opposed to formal equality in the event that the Court declares Sections

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> 15, 16 and 18 of the Divorce Act to be inconsistent with certain constitutional provisions is brought out.

We also noted the quest by the Applicants to address the court on its obligation to provide a remedy that provides for legal certainty and the avoidance of creating a lacuna if particular sections of the Divorce Act are

15 declared to be unconstitutional. lt is a relevant and novel question that merits the attention of the court as it determines the head petition.

The question as to whether courts have an obligation to remedy past and ongoing gender discrimination, and the importance and utility of an order suspending an order of invalidity of provisions in the Divorce Act as a remedy

20 in Constitutiona! Iitigation, is also quite novel and appears not to have been addressed by either party to the Petition.

## Public interest

We are of the view, that what the Applicants seek to address are matters of public interest and are relevant to the court in formulating appropriate orders

- in the event that the particular provisions of the Divorce Act are found to be inconsistent with the Constitution. We are however mindful of the fact that the opinions of the amicus curiae are not binding on the court. lt remains in the discretion of the court to decide whether to consider or leave out the su bm issions. 25 - A perusal of the intended brief further shows that it is grounded in the law, does not amount to fresh evidence or a new cause of action, does not favour either party to the Petition and may aid the development of jurisprudence in the nature of reliefs courts can give in matters of divorce. 30

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- <sup>5</sup> ln the premises, we do not find merit in the objection to the application. We find that the Applicants meet the requisite requirements under the law to be admitted as Amici Curiae in the main cause. The Application is allowed with orders that: - a) The Applicants are granted leave to intervene as Amici Curiae in Constitutional Petition No.09 of 2022.

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- b) The joint amicus brief filed by the Applicants is adopted by the court. - c) Each party shall bear their own costs of this application.

Dated th is t uZa day of 2024.

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Fredrick Egonda Ntende

20 Justice of the Constitutional Court

HellenObu ra Justice the Constitutiona I Court

Eva Luswata Justice of the Constitutional Court

Moses Kazibwe Kawumi Justice of the Constitutiona! Court

Asa Mugenyi Justice of the Constitutional Court 35