Defining “discrimination” under the Constitution and the Act

Article 21 of the Constitution provides for the right to freedom from discrimination. It states that:

Discrimination is defined in article 21(3) of the Constitution as follows:

Before illustrating how the Commission has defined discrimination, I will briefly discuss how Ugandan courts have dealt with article 21; they have developed rich jurisprudence on it, which is beyond my scope to discuss here.Footnote ⁶ However, some relevant issues will be highlighted. The Constitutional Court has held that under article 21, equality and discrimination are two separate but related concepts.Footnote ⁷ The Court has also explained the circumstances in which the Constitution permits discrimination and that discrimination can be in law itself or in its purpose or effect.Footnote ⁸ In Lwabayi Mudiba and Another v Attorney General, the Court held that “discrimination is a very relative concept and the context of that discrimination is material for purposes of considering violation of Article 21”.Footnote ⁹ However, courts have been inconsistent on whether the list of grounds under article 21(3) is exhaustive; there are cases in which the High Court and the Constitutional Court have held that this list is not comprehensive,Footnote ¹⁰ and others in which they have held that it is.Footnote ¹¹ The Supreme Court, the highest court in Uganda, is also divided on this issue, but has held by majority that the list is exhaustive.Footnote ¹²

Article 21(3) defines discrimination “for the purpose” of article 21. It could be argued that another definition for the purpose of another piece of legislation could be adopted by Parliament, otherwise the drafters of the Constitution would have preceded the definition under article 21(3) with words to the effect that “for the purpose of the Constitution or any law in Uganda, discrimination means…” Thus, section 1 of the Equal Opportunities Act defines discrimination differently from article 21(3) of the Constitution. It provides that:

The following differences should be noted between the definitions of “discrimination” under article 21(3) of the Constitution and section 1 of the Act. Firstly, although the latter prohibits discrimination on the ground of health status, this is not provided for in the Constitution. In other words, although the Act prohibits discrimination on all the grounds in the Constitution, it adds one extra. The Constitution is the supreme law of Uganda, and another law which is inconsistent with it is null and void to the extent of its inconsistency (article 2 of the Constitution). However, the fact that section 1 of the Act provides one more additional ground against which a person may not be discriminated, compared to article 21(3), does not render section 1 unconstitutional. This is because the definition of discrimination under article 21(3) is “for the purposes” of that article.

It should also be remembered that article 45 of the Constitution provides that “[t]he rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned”. The Supreme Court has held that article 45 “incorporates other human rights and freedoms although they may not be specifically mentioned in the Constitution”.Footnote ¹³ Some of the international human rights treaties ratified by Uganda also prohibit discrimination on the ground of health status.Footnote ¹⁴ Thus Uganda is required to give effect to its international law obligations. However, in practice, as the discussion below illustrates, the Commission has relied on the definitions under article 21(3) of the Constitution and under section 1 of the Act.

Secondly, for an act or omission to amount to discrimination under section 1 of the Act, it has to have an “effect”. In other words, the person alleging discrimination is required to prove the effect that the alleged discriminatory act had on them, and must prove one or more of the effects in section 1 of the Act. Thirdly, the definition under article 21(3) of the Constitution requires that the alleged perpetrator must perform an act – the act of giving “different treatment to different persons”. However, the definition under the Act covers both acts and omissions.

Prohibited grounds of discrimination under the Act

An important question is whether the Commission can find that a person has been discriminated against on a ground which is not expressly mentioned in article 21(3) of the Constitution or section 1 of the Act. A strict interpretation of section 1 of the Act shows that the list of the prohibited grounds of discrimination is exhaustive. Otherwise, the legislators would have used words such as “include” or “such as”. The drafting history of the Act shows that when the Minister for Gender (the Minister) introduced the bill to Parliament for its second reading, she said that the mandate of the Commission will “include things like equal pay for equal work of equal value and freedom from discrimination based on any attribute and affirmative action”.Footnote ¹⁵ This implied that the bill was to prevent discrimination on any possible ground. However, this is not what the bill says; a closer examination of the drafting history reveals that the true intention of the legislators was to exclude some grounds by implication and others expressly. Initially, the bill had defined discrimination to mean

That definition was replaced by the current one in the Act because it “include[s] all forms of discrimination for clarity”.Footnote ¹⁷ This means that the definition in the Act includes all the prohibited grounds of discrimination and that any ground which is not mentioned was excluded deliberately or by implication. The drafting history of the Act shows that age and sexual orientation were deliberately excluded from the list of prohibited grounds of discrimination.Footnote ¹⁸

It has been indicated above that the initial definition of discrimination in the bill included age as one of the grounds on which a person may not be discriminated against. However, this definition was replaced by a new one during the second reading of the bill. The new definition, which was meant to include all the prohibited grounds of discrimination, excluded age as one of those grounds – the legislators did not explain why this ground was dropped. However, there are other circumstances in which the Commission could consider the issue of age in the execution of its mandate, which would mean that it is not excluded entirely. When the Minister introduced the bill to Parliament for the second reading, she said that some of the purposes of the Act were:

This submission was based on the definition of discrimination in the bill before it was replaced. This explains why the definition of discrimination in the Act does not prohibit discrimination on the ground of age. The issue of age also arose when the Speaker of Parliament asked the Minister the following question:

To the above question, the Minister replied that Ugandan laws prohibited the employment of minors and that minors cannot join the army.Footnote ²¹ The above discussion implies that strictly speaking, a person cannot argue that the Act prohibits discrimination on the ground of age. There are three possible ways in which one can argue that the Commission has jurisdiction to entertain complaints alleging discrimination on the ground of age. Firstly, one could rely on the drafting history of the Act and argue that the exclusion of age as one of the prohibited grounds of discrimination was by mistake. Otherwise, the legislators would have justified its exclusion. Secondly, one would have to rely on article 45 of the Constitution and Uganda's international human rights obligations to justify why the Commission should find that discrimination on the ground of age is prohibited. The challenge is that the Supreme Court has held by majority that article 21(3) of the Constitution does not prohibit discrimination on the ground of age.Footnote ²² However, it can be argued that the decision of the Supreme Court was based on article 21(3) of the Constitution and not section 1 of the Act.

Thirdly, it can also be argued that the Commission is able to entertain a complaint alleging discrimination on the ground of age because the long title of the Act provides that one of Commission's mandates is “to give effect to the State's constitutional mandate to eliminate discrimination and inequalities against any individual or group of persons on the ground of sex, age, race, colour, ethnic origin, tribe, birth, creed or religion, health status, social or economic standing, political opinion or disability”. This argument could be supported by one of the cardinal rules of legislative interpretation that legislation has to be read as a whole.Footnote ²³ The Act also provides that the Commission will ensure that people have access to equal opportunities irrespective of many factors, including their age, and that affirmative action policies do not exclude people on the basis of their age.Footnote ²⁴

Some of the jurisprudence from the Commission creates the impression that it is only prepared to find that a person was discriminated against if s/he proves one of the grounds enumerated in the Act. For example, in Tumwesigye v Mbabara Government, the complainant alleged that the respondent's refusal to award him a tender amounted to discrimination against him because of his political opinion. One of the issues before the Commission was “whether the actions of the Respondent amount to discrimination of the Complainant on the grounds provided for” in the Act.Footnote ²⁵ The Commission found that the evidence before it showed that the complainant had been discriminated against because of his political views.Footnote ²⁶ For the Commission to find that a complainant has been discriminated against, s/he must prove a “specific act of discrimination” under the Act or the Constitution.Footnote ²⁷ The jurisprudence of the Commission shows that it has found that people have been discriminated against on the enumerated grounds, i.e. ethnicity, tribe, race and colour of the skin, religion, sex, and political opinion.Footnote ²⁸ However, the Commission has also found that some people have been discriminated against on grounds which are not expressly mentioned in the Act, for example on the ground of age.Footnote ²⁹

The Commission has referred to international instruments to highlight the fact that some of the prohibited grounds of discrimination under section 1 of the Act and article 21 of the Constitution are also provided for in international human rights law. For example, in Bwengye v Bishop Stuart University, the Commission held that by prohibiting the complainant from standing for election for a guild position because he did not belong to the Anglican faith, the respondent had discriminated against the complainant on the basis of his religion, contrary to section 1 of the Act, article 21 of the Constitution, article 2 of the International Covenant on Civil and Political Rights (ICCPR), article 2 of the International Convenant on Economic, Social and Cultural Rights (ICESCR), article 2 of the Universal Declaration of Human Rights and article 2 of the African Charter on Human and Peoples’ Rights.Footnote ³⁰ The Commission observed that it had relied on article 2 of the ICESCR because it was “domesticated in Article 21(1) of the Constitution” of Uganda.Footnote ³¹ In this case, the Commission's reference to these international instruments is understandable because, like section 1 of the Act and article 21 of the Constitution, they also prohibit discrimination on the ground of religion. However, the Commission should bear in mind that some of the grounds prohibited in these international instruments – including language, other opinion and national origin, which are included in article 2 of both the ICCPR and the ICESCR – are not included in section 1 of the Act. Therefore, should a person allege that they have been discriminated against on these grounds, the Commission would have to explain why it has relied on such a ground when the drafting history of Act suggests that the legislators intended for the list to be exhaustive. The argument that the Commission advanced in this case, that the ICESCR or any other treaty it referred to had been domesticated in Uganda under article 21 of the Constitution, is not convincing, because article 21 does not include all the grounds enumerated in article 2 of the ICESCR. So the Commission would have to look for another reason to support its reliance on these treaties.

The Commission has also found that people have been discriminated against without explaining the ground of discrimination. For example, in Mukanga v Umeme Ltd, the respondent erected electric poles and wires on the complainant's compound, which made it impossible for him to finish the construction of his house. One of the issues before the Commission was “whether the actions of the respondent amounted to marginalisation or discrimination of the Applicant on the basis of disability, age, gender, ethnicity or any other classification”.Footnote ³² After outlining the facts, which showed that the main reason why the respondent erected the poles on the complainant's land was because he was away for work in another part of the country, the Commission held that the respondent's conduct amounted to “the unequal treatment and blatant discrimination of the complainant”.Footnote ³³ However, the Commission does not explain the ground on which the complainant was discriminated against. There are other instances where the Commission has not been clear on the exact ground of discrimination. For example, in Acaye v Bank of Uganda and Guarantee Trust Bank, the applicant's employment was terminated by the respondents; the evidence before the Commission showed that this termination was based on his tribal or ethnic background. The Commission found that “[t]ermination of the complainant's employment therefore can rightly be construed to have been triggered by tribal or ethnic considerations especially in the circumstances that utterers of the discriminatory statements were not produced before this tribunal to deny the allegations attributed to them”.Footnote ³⁴ It is thus not clear whether the termination was based on the complainant's tribal or ethnic background or both; it could be that it was based on both. These being two separate but closely related grounds under both article 21 of the Constitution and section 1 of the Act, one would have expected the Commission to explain which of the two was applicable or whether both of them were.Footnote ³⁵ There are also instances in which the complainants do not specify the grounds upon which they were allegedly discriminated against, and the Commission does not explain the ground(s) in question when concluding that the complainants were not discriminated against.Footnote ³⁶

The Commission's definition of “discrimination”

Although the Act defines “discrimination”, the Commission's jurisprudence shows that it has been inconsistent regarding the definition of this word. In some cases, it has relied exclusively on the definition of discrimination under the Act.Footnote ³⁷ However, in others it has relied on both the definition under the Act and from other sources. In cases where it has relied on definitions from other sources, it has also been inconsistent with regards to these sources. Its jurisprudence shows that it has relied on the definition(s) of discrimination in the Act, in the Constitution and in case law,Footnote ³⁸ in the Act and in case law (including foreign case law),Footnote ³⁹ and in the Act and under article 21 of the Constitution.Footnote ⁴⁰ In cases where it has referred to more than one definition, it has either indicated which one it has relied on for the purpose of deciding the complaint before it or has not made any indication.Footnote ⁴¹ In my view, since the Act defines discrimination, there is no need for the Commission to cite or rely on other definitions. If it chooses to cite other definitions in addition to that in the Act, it should restrict itself to the definition under article 21 of the Constitution. It should not rely on definitions under Ugandan case law unless these comply with the definition under article 21(3) of the Constitution, because different judges have adopted different definitions.Footnote ⁴²

In some cases, the Commission did not define discrimination, although it found that the complainant was or was not discriminated against.Footnote ⁴³ As mentioned, in some cases when the Commission refers to more than one definition of discrimination, it does not explain which of those it has relied on for the purposes of the facts before it. This is understandable if the complainant alleges that s/he was discriminated against on a ground which is prohibited in both or all the definitions relied on. However, the situation remains unclear when the alleged ground is not provided for in any of the definitions being used. For example, in Initiative for Social and Economic Rights v AG, the Commission found that the government's policy of excluding the complainants from the social security scheme may amount to discrimination against them, presumably on the ground of age (as older persons), but it did not explain which definition it used that prohibits discrimination on this ground.Footnote ⁴⁴

Establishing discrimination

The Act does not provide that discrimination can only be found when the alleged conduct or omission was deliberate or negligent. However, the Commission has held that for conduct to amount to discrimination, it does have to be deliberate, ie “clear or intended”, or negligent.Footnote ⁴⁵ For example, in Banyabindi Community of Kasese v AG & Kasese District Local Government, the Commission found that the government had settled other communities from which it had taken land but had not done so in the case of the complainant community. The Commission held that “there was unequal treatment when the Government failed or neglected to resettle the complainants”.Footnote ⁴⁶ This implies that the Commission will find that a policy is discriminatory if it was deliberate or negligent; what matters is that it had one of the effects contemplated under section 1 of the Act. The Commission held that “for discrimination to suffice there should be special or preferential treatment given to different person(s) in exclusion of others”.Footnote ⁴⁷

Apart from the alleged act being deliberate or negligent, the Commission appears to have set other criteria against which to assess whether the discriminatory conduct is justifiable. For example, in Bwengye v Bishop Stuart University, the complainant argued that the University's Guild Constitution, which prohibited non-Anglican students from standing for some student leadership positions, was discriminatory on the basis of religion. The University argued that this was “positive discrimination”, as it ensured that the University's objective of promoting the Anglican faith was achieved.Footnote ⁴⁸ The Commission held that the Guild Constitution was discriminatory on the basis of religion and should be amended, because “excluding these [non-Anglican] groups amounts to dangerous and unconscionable discrimination” and that “the discrimination complained about is unjustified, wrongful and simply premised on prejudice against the non-Anglican students”.Footnote ⁴⁹ The Commission added that the respondent failed to adduce evidence to show that “[t]he discrimination is intended to benefit the Anglican students who may have faced discrimination in accessing the guild leadership, or suffered a disadvantage in the past, hence the positive discrimination in their favour”.Footnote ⁵⁰ In other words, the discrimination in question was “unjustifiable, illegal and unconstitutional”.Footnote ⁵¹

A combined reading of the Commission's jurisprudence shows that it will find that discrimination is justifiable if it has a legitimate constitutional objective to serve. For example, it should be aimed at addressing a historical imbalance. The burden is on the respondent to convince the Commission of why it should hold that the discriminatory act or policy is not contrary to the Act or the Constitution. As mentioned above, for conduct to amount to discrimination under the Act, it has to have an effect. The Commission has thus found that conduct will only amount to discrimination if it is deliberate and has the effect of marginalizing the complainant, or that it has the effect of depriving the complainant of their land or excluding them from employment or education.Footnote ⁵²

Marginalization

One of the functions of the Commission is receiving complaints alleging marginalization. Section 1 of the Act defines marginalization to mean “depriving a person or a group of persons of opportunities for living a respectable and reasonable life as provided in the Constitution”. It is important to draw a distinction between marginalization as one of the effects of discrimination on the one hand (in the definition of discrimination under section 1 of the Act) and marginalization as a stand-alone complaint (in the definition of marginalization under the same section). Marginalization as an effect of discrimination is only applicable in cases where a section of society was affected; in other words, it does not apply to individuals. Put differently, in this case, marginalization can only be found if there was discrimination. However, both individuals and groups (including a society or a section of society) can allege marginalization and / or discrimination as separate grounds. In this case, there is no need for discrimination to be proved for the Commission to find marginalization.

For a conduct or omission to amount to marginalization, it has to deprive “a person or a group of persons of opportunities for living a respectable and reasonable life as provided in the Constitution”. In other words, the complainant(s) has to prove two things: deprivation of opportunities, and that those opportunities are essential or required for the complainant(s) to live “a respectable and reasonable life”. It is not enough that the deprivation has prevented the complainant from living a respectable or reasonable life; the use of the word “and” implies that both elements must be proved. However, the challenge is that the Constitution does not include a provision which provides for a respectable and reasonable life. In order to overcome this dilemma, the Commission has found that a violation of human rights amounts to marginalization. These rights have included the right to work, to property and to freedom from discrimination in employment and education.Footnote ⁵³ As the Act does not define or describe “respectable and reasonable life”, the Commission has relied on the dictionary to define these terms.Footnote ⁵⁴ The test of whether the life in question is respectable and reasonable is a subjective one; what is respectable and reasonable depends, inter alia, on the personal circumstances of the complainant(s).

For the Commission to find marginalization, the complainant must explain how the alleged deprivation of opportunity prevented him / her from living a respectable and reasonable life. For example, in Acaye v Bank of Uganda and Guarantee Trust Bank, the Commission held that terminating the complainant's employment on the basis of his ethnicity amounted to “marginalisation because of loss of opportunities to support his family to live a respectable, decent and reasonable life”.Footnote ⁵⁵ It is not clear why the Commission added the word “decent” in this decision; section 1 of the Act mentions only two grounds, reasonable and respectable. Likewise, in Mukanga v Umeme Ltd, the Commission found that the respondent's action of erecting electric poles and wires on the complainant's land rendered the complainant and his family “homeless and deprived [them] of opportunities to live a reasonable and respectable life”.Footnote ⁵⁶ Although section 1 of the Act defines marginalization, in some of its jurisprudence the Commission has relied on both the Act and dictionaries to define this term.Footnote ⁵⁷ This creates the impression that the Commission does not find the definition in the Act sufficient; otherwise, one would not expect it to refer to a dictionary to define a term which is defined in the Act.

Equal opportunities

One of the Commission's mandates is to promote equal opportunities. Section 1 of the Act defines equal opportunities as:

The drafting history of the Act shows that the legislators were of the view that equal opportunities had to be available at all levels of government, in both private and public sectors and in families.Footnote ⁵⁸ Because some legislators wanted to know the distinction between equal opportunities and affirmative action, one legislator clarified that “equal opportunity is about the best for the job, while affirmative action is positive discrimination”.Footnote ⁵⁹ Another legislator clarified the distinction between equal opportunities and equal benefits by submitting that:

When some legislators argued that requiring people to ensure equal opportunities at the family level would make it impossible for parents to discipline their errant children,Footnote ⁶¹ the Minister explained that:

Under section 23(1) of the Act, “[a] person may lodge a complaint relating to … any act which undermines or impairs equal opportunities with the Commission”. For a person to allege that an act has impaired or undermined equal opportunities, the victim's complaint must refer to one of the grounds mentioned in the definition of equal opportunities under section 1 of the Act. The complaint has to relate to “any act which undermines or impairs equal opportunities”, but the Act is silent on the issue of whether a complaint can be lodged alleging that an omission impairs or undermines equal opportunities. It could thus be argued that the Commission has no jurisdiction to entertain such a complaint. This argument could be strengthened by the view that had the drafters of the Act wanted to include omission in section 23(1), nothing would have prevented them from doing so, especially since they included omission in the definition of discrimination. However, it could also be argued that section 2 of the Interpretation Act provides that “‘act’ used with reference to an offence or civil wrong includes a series of acts, and words which refer to acts done extend to illegal omissions”. Therefore, if an omission is illegal, it falls under the mandate of the Commission.

The drafting history of the Act does not show that there was any debate on the exclusion of “omission” from the definition of “equal opportunities” and also from section 23(1) of the Act. I argue that the legislators never intended to deliberately bar the Commission from entertaining complaints alleging that an omission undermined or impaired equal opportunities. Jurisprudence from the Commission shows that it has found some acts to have undermined or impaired equal opportunities; these have included terminating a person's employment on the basis of his ethnicity and prohibiting non-Anglican students from competing for some guild offices.Footnote ⁶³ However, the Commission has also created the impression that discrimination is the same thing as impairing or nullifying equal opportunities. For example, in Bwengye v Bishop Stuart University, the Commission held that “the provisions of the Respondent's Guild Constitution are discriminatory and / or amount to impairing of equal opportunities”.Footnote ⁶⁴ Likewise, in Initiative for Social and Economic Rights v AG, in which the government excluded elderly persons staying in some parts of the country from benefiting from its pilot social security scheme, the Commission held that:

In Acaye v Bank of Uganda and Guarantee Trust Bank, the Commission held that the respondent's act amounted to “discrimination and breach of equal opportunities”.Footnote ⁶⁶ In this case, the Commission does not blur the distinction between discrimination on the one hand and equal opportunities on the other. The approach in this case is preferable to the one in Bwengye v Bishop Stuart University because in the Act, the two concepts, although related, are distinct.

Affirmative action

One of the Commission's functions is to promote affirmative action; this requires the examination of the issue of affirmative action in Uganda in detail. Article 32(1) of the Constitution provides that:

Under article 32(1), the duty is imposed on the state to take affirmative action measures. This could explain why Clause 22 of the Equal Opportunities Commission Bill provided that:

However, the above clause was replaced by the current section 14(1) of the Act, which empowers the Commission to monitor, evaluate and ensure that the policies of the government and non-state actors, and in particular “private businesses and enterprises; non-governmental organizations, and social and cultural communities”, are compliant with affirmative action. The drafting history of the Act shows that Clause 22 was deleted from the Act because it duplicated the activities mentioned under section 14. The legislators do not explain why the obligation to implement affirmative action is also imposed on private companies or organizations.Footnote ⁶⁷ The drafting history of the Act also shows that the Commission was established as the “particular government” body “mandated to evaluate” the government's “deliberate policy” on affirmative action.Footnote ⁶⁸ In other words, the Commission was established as “a national custodian of affirmative action and equity”.Footnote ⁶⁹ Before discussing whether the drafters of the Act were justified in imposing the obligation to take affirmative action measures on private companies and organizations, it is important to illustrate the drafting history of article 32 of the Constitution.

Article 32(1) was included in the Constitution to ensure that Uganda complies with its international human rights obligations. In its report, the Constitutional Commission referred to the International Convention on the Elimination of all Forms of Racial Discrimination, and observed, inter alia, that:

The issue of affirmative action was raised especially in the submissions on the rights of women, and the Constitutional Commission reported that:

Affirmative action was therefore meant to be temporary and was based on Uganda's international human rights obligations.Footnote ⁷² Against that background, the Constitutional Commission recommended that the new Constitution should provide for affirmative action for women, people with disabilities and minorities.Footnote ⁷³ The minorities in question were “cultural, religious, political or economic”.Footnote ⁷⁴ The Constitutional Commission included these recommendations in clauses 23(3) and 61(3) of the draft constitution which formed part of its report.Footnote ⁷⁵

The draft constitution was discussed at the Constituent Assembly, the mandate of which was to promulgate the new Constitution. The proceedings of the Constituent Assembly show that previous governments had also put in place measures to protect the rights of women.Footnote ⁷⁶ They also show that even before the Constitution was adopted, the government had adopted affirmative action measures for women (to participate in social, political and economic affairs),Footnote ⁷⁷ for girls (requiring fewer points than boys to join universities)Footnote ⁷⁸ and for the rural population.Footnote ⁷⁹ However, the delegates were concerned that affirmative action was “only benefitting the elite”.Footnote ⁸⁰ Some delegates argued that the government had to continue with affirmative action measures for more girls to join universities,Footnote ⁸¹ to empower women “to come into public life”, such as becoming Members of Parliament,Footnote ⁸² and for the elimination of all discriminatory cultural practices against women.Footnote ⁸³ There should also be action for girls in primary and secondary schools, for children generally and for people with disabilities.Footnote ⁸⁴ Affirmative action was necessary “because it is not possible to achieve equality between men and women by merely prohibiting discrimination. In order to rectify the inequalities which exist, measures need to be taken which give women advantages in many areas.”Footnote ⁸⁵ One delegate supported “women's liberation and endorse[d] affirmative action until such a time that the victims of sexist discrimination have been sufficiently redressed”.Footnote ⁸⁶ In other words, affirmative action measures did not have to be permanent, but were temporary.Footnote ⁸⁷

There was consensus that affirmative action was not supposed to be permanent for each of the marginalized groups.Footnote ⁸⁸ Put differently, “affirmative action by its nature is temporary and in fact, should just die when that group has stabilized or reached a level where society believes that at least it has sort of caught up with the other groups”.Footnote ⁸⁹ However, the proposal that a provision should be included in the Constitution to stipulate the timeframe within which the necessity or otherwise of affirmative action measures had to be reviewed was rejected by the majority of the delegates and was withdrawn.Footnote ⁹⁰ This proposal was to the effect that the constitutional provision on affirmative action should be reviewed after two parliamentary terms to assess whether it was still necessary, and that if the review established that it was not, then affirmative action had to be stopped.Footnote ⁹¹ However, this proposal was opposed for several reasons, including that affirmative action was meant to ensure that “disadvantaged groups”, especially women, continue to benefit from democracy (by being in Parliament) and that other constitutional provisions which dealt with parliamentary representation for special interest groups, such as the army and young people, were not subject to review.Footnote ⁹²

Most of the delegates discussed affirmative action as a means to uplift the standards of women.Footnote ⁹³ A few talked about other marginalized groups,Footnote ⁹⁴ which prompted some delegates to clarify that affirmative action was meant to benefit all marginalized groups, as opposed to women only.Footnote ⁹⁵ It was explained that:

It was clarified that the list of marginalized groups mentioned in the Constitution is not exhaustive.Footnote ⁹⁷ It is the duty of Parliament to decide which group, in addition to those mentioned in article 32 of the Constitution, should be classified as marginalized for the purpose of affirmative action. Parliament can also decide to remove a group from the list of marginalized groups if it is of the view that the group no longer requires affirmative action.Footnote ⁹⁸ However, women were singled out as the most marginalized;Footnote ⁹⁹ therefore a specific provision, article 33(5), was included in the Constitution to deal with affirmative action for women. This is because:

The drafting history of articles 32 and 33 shows that, much as affirmative action was meant to cover previously marginalized groups, one group, that of women, was more marginalized than others. This history also shows that with one exception, all the submissions were to the effect that it is the duty of the state to take affirmative action. The one exception was when it was suggested that companies owned by foreign nationals also had to take affirmative action measures and equip Ugandans with the skills of running those companies.Footnote ¹⁰¹ This background is important in order to understand what is required of the Commission when dealing with its mandate of ensuring that the government and the private sector take affirmative action measures in favour of the marginalized groups.

Much as the drafting history of article 32 shows that it is the duty of the state to take affirmative action measures, the Equal Opportunities Act extends this obligation to non-state actors. Thus, under section 14(1) of the Act, the Commission has the mandate

Neither the Constitution nor the Act defines affirmative action.Footnote ¹⁰² However, a combined reading of article 32 and its drafting history along with section 14 of the Act and its drafting history shows that affirmative action is only applicable to groups. In other words, the state is not under a duty to take affirmative action measures for individual persons unless these persons form part of a marginalized group. Unlike in the case of discrimination, where it could be argued that the list of the prohibited grounds of discrimination is exhaustive, the list of groups for which affirmative action measures may be taken is open. The drafting history of article 32 of the Constitution shows that Parliament can amend that list. However, it has to be shown that the group in question has been “marginalized” on any of the grounds mentioned in the Act.

The above debates on article 32 also show that delegates were of the view that the duty was on the state to take affirmative action measures.Footnote ¹⁰³ Therefore the constitutionality of section 14 of the Act, which imposes this obligation on private companies and individuals, could be challenged. That notwithstanding, the jurisprudence of the Commission shows that it has dealt with the issue of affirmative action in complaints brought against the government. For example, in Banyabindi Community of Kasese v AG & Kasese District Local Government, the Commission ordered the respondent to take affirmative action “to address the historical imbalances that the complainants have suffered by according them fair competition and including qualified Banyabindi in the District and Central government placement in the public service.”Footnote ¹⁰⁴ In Yasin v Attorney General, the Commission held that it does not have the power to order the government to adopt affirmative action for political appointments because this is an “[e]xecutive prerogative of the President which must be exercised in the best interest of all Ugandans”.Footnote ¹⁰⁵ The jurisprudence of the Commission suggests that it will not find a private institution to have discriminated against the complainant if the measures it adopted amount to positive discrimination (affirmative action). For example, in Bwengye v Bishop Stuart University, the Commission found that the respondent's policy of excluding non-Anglican students from competing for some student leadership positions was discriminatory and unconstitutional because there was no evidence to show that “[t]he discrimination is intended to benefit the Anglican students who may have faced discrimination in accessing the guild leadership, or suffered a disadvantage in the past, hence the positive discrimination in their favour”.Footnote ¹⁰⁶ As the respondent is a private university in Uganda, this conclusion shows that the Commission also expects private institutions to adopt affirmative action measures.

Locus standi and complaints before the Commission

Any person who alleges that s/he has been discriminated against, marginalized or denied an equal opportunity can file a complaint before the Commission under section 23 of the Act. Section 1 defines a person as including “any individual, firm, company, association, partnership or body of persons, whether incorporated or not”. This means both natural and juristic (legal) persons have a right to file complaints before the Commission. However, not all provisions of the Act are applicable to juristic persons; for example, the state is not required to take affirmative action measures for the benefit of juristic persons. Likewise, juristic persons cannot allege discrimination on some grounds (such as race, ethnicity and tribe), and also cannot allege that they have been marginalized. This is because they cannot prove that they have been deprived of “opportunities for living a respectable and reasonable life as provided in the Constitution”.

However, both the Act and the Equal Opportunities Commission Regulations (2013) are silent on how a juristic person can file a complaint before the Commission, and in particular, on which person is supposed to sign the complaint on behalf of the juristic person. The jurisprudence of the Commission shows that it has blurred the distinction between natural persons (as directors of juristic persons) on the one hand and juristic persons on the other. For example, in Tumwesigye v Mbabara Government, two firms, both owned by the applicant, won a government tender; government officials refused to sign the relevant tender contract because the owner of the firms, the complainant, was a member of an opposition political party.Footnote ¹⁰⁷ Based on the evidence before it, the Commission held that the “[d]enial to conclude the Framework Contract process [by the respondent] was a deliberate move to deny FREEDOM GARDENS RENDEZVOUS [one of the complainant's firms] an opportunity to offer its services to the Respondent and therefore discriminatory within the definition of section 1 of the Equal Opportunities Commissions Act 2007.”Footnote ¹⁰⁸ In awarding the complainant damages against the respondent, the Commission considered the fact that the respondent's refusal to sign the contract “clearly denied the complainant any business” and that the complainant experienced “emotional, physical and financial strains” as a result.Footnote ¹⁰⁹ It is evident that, strictly speaking, it is the complainant's firm which was denied the tender opportunity. However, this distinction was blurred. There is a need for the Commission's Regulations to be amended to clarify the circumstances in which a juristic person can lodge a complaint before the Commission. The commissioners should also bear in mind that there is a difference between a juristic person and its directors. Otherwise, the Commission will end up not remedying the wrongs suffered by the juristic persons, as happened in the case of Tumwesigye v Mbabara Government.

Remedies by the Commission

The powers of the Commission relating to remedies are found in section 15(4) of the Act, which provides that:

We can therefore observe that under section 15(4)(a), the Commission can refer any matter to another institution which can best handle the matter. On the basis of this provision, the Commission has, for example, referred matters to the Ministry of Gender and to courts.Footnote ¹¹⁰ Under section 15(4)(b), the Commission has the powers to “recommend to or order any institution, body, authority or person to adopt or take particular steps or action which, in the opinion of the Commission will promote equal opportunities”. There is a difference between a recommendation and an order: a recommendation implies that the steps or actions suggested by the Commission are not binding. In other words, the recipient of the recommendation may choose to implement or ignore it. However, in the case of an order, the actions or steps ordered by the Commission must be taken. This distinction is supported by a combined reading of sections 15(4)(a) and 31(3)(d) of the Act. The latter provides that it is an offence for any person to contravene or refuse to “implement any order or settlement made by the Commission”. The settlement being referred to here is the one under section 14(3) of the Act, one of the alternative dispute mechanisms. The binding nature of orders could explain why, in many of the complaints it has decided, the Commission has made orders against the respondents.Footnote ¹¹¹ However, there are also instances where the Commission has not clarified whether it has made an order or a recommendation.Footnote ¹¹² There are also cases where the Commission's orders are not directed to any person or entity, which could make their implementation difficult or impossible.Footnote ¹¹³ A strict interpretation of section 15(4)(a) means that the Commission can only make an order or recommendation for the purpose of promoting equal opportunities. This leaves out the other core functions of Commission: preventing marginalization, promoting affirmative action and preventing discrimination. In order to avoid an absurdity, the Act should be read as a whole, and this means that the Commission's orders and recommendations should extend to all the functions of the Commission.

Under section 15(4)(b), the Commission can “recommend” to any of the bodies enumerated therein to make legislation for the purpose of promoting equal opportunities, and such a recommendation “shall” be implemented within six months. Unlike under section 15(4)(a), where recommendations are not binding, a recommendation made under section 15(4)(b) is binding. Therefore, it should not be construed as a recommendation; it is an order. Failure to implement it should be punishable under section 31(3)(d).

Neither the Act (section 15(4)) nor the Regulations (Regulation 23) expressly empower the Commission to award damages to a complainant. However, there are instances where the Commission has awarded damages where it has found that the complainants were discriminated against, marginalized or denied equal opportunities; these have included general and special damages.Footnote ¹¹⁴ The Commission will only award special damages in cases where the complainant has proved them.Footnote ¹¹⁵ In Mugenzi Mugerwa v Byaruhanga Edward, the Commission held that the respondent had encroached on most of the applicant's land, which “worsened her health” for several years, “hence denying her the right to live a reasonable and respectable life as per the Constitution”.Footnote ¹¹⁶ However, the Commission declined to award the applicant general damages because she “still remained with a portion of land for her livelihood and did not … suffer extreme marginalization to justify award of general damages”.Footnote ¹¹⁷ This was the first time the Commission invoked the requirement of “extreme marginalization”, which is not provided for under the Act, as a prerequisite for awarding general damages. The Commission does not explain the criteria that should be used to determine what amounts to “extreme marginalization”.

Since neither the Act nor the Regulations expressly empower the Commission to award damages, it would be a good idea for the Commission to explain the basis for its power to do so.Footnote ¹¹⁸ Similarly, the Commission has ordered the Ministry of Internal Affairs to grant citizenship to a complainant.Footnote ¹¹⁹ It has also declared a custom null and void; for example, in Lugemwa v Busulwa, the Commission held that “the custom which prevents women who are married in a clan other than their own, from passing on property to their children is discriminatory and we hereby prohibit the same”.Footnote ¹²⁰ The Commission has also declared an employment contract illegal and has stated that some provisions of the Guild Constitution are contrary to a university's constitution, the national constitution and Uganda's international human rights obligations.Footnote ¹²¹ It has also granted a permanent injuction against the respondent who was encroaching on the applicant's land.Footnote ¹²² The challenge is that the Commission does not explain which statutory provisions empower it to make these declarations.Footnote ¹²³

The Commission has been inconsistent in the approaches it has taken to ensure that its recommendations or orders are implemented. It has adopted two approaches: the first is to require the respondent to report to the Commission, within a stipulated timeframe, on the measures it has taken to give effect to the Commission's orders or recommendations. The reporting period has ranged between three and twelve months.Footnote ¹²⁴ The second approach is the opposite of the first: the Commission does not order the respondents to report on the measures taken.Footnote ¹²⁵ In my view, the first approach is the best one; it gives the Commission an opportunity to assess whether or not the respondent is complying with its orders.