The drafting history of Article 38 of the Constitution

In 1988, the government of Uganda embarked on the process of enacting a new constitution. It established the Constitutional Commission, also known as the Odoki Commission because it was chaired by Mr Benjamin Odoki, to collect submissions from Ugandans on the issues they wanted to be addressed in the new Constitution. In its report, the Odoki Commission did not discuss the issue of public participation in the law-making process specifically. However, it recommended that the new Constitution should include rights and freedoms such as the “right to participate in governance”.Footnote ⁸ The Commission also emphasized the issue of participatory democracy and in particular the right of people to vote for their members of Parliament, and opposed the approach of the executive nominating individuals to represent some professions in Parliament.Footnote ⁹ Ugandans who made submissions to the Commission expected members of Parliament to be accountable to voters; some of them argued that the Constitution should allow for legislators who had failed to serve voters’ interests to be recalled.Footnote ¹⁰ The report also indicated that some people argued that legislators should be given enough time and opportunities to participate in debates in Parliament.Footnote ¹¹

The submissions to the Odoki Commission show that Ugandans focused on two elements of participatory democracy: first, for citizens to elect their representatives, and second, for representatives to have the right to participate equally in parliamentary debates. Thus the Commission’s report is silent on the right of citizens to make submissions to Parliament for the purpose of influencing the legislative process. However, this silence is not a basis for the argument that citizens do not have a right to make submissions. It has been mentioned above that citizens expected their legislators to be accountable to voters, that is, to represent their interests in Parliament and to be recalled if they failed to do so. The Odoki Commission wrote that:

This means, amongst other things, that citizens were expected to inform their representatives of the interests they wanted them to protect. One of the ways through which citizens can inform their legislators of these interests is by making submissions on bills; legislation must then serve these interests. Hence Parliament must ensure that it has mechanisms in place to enable citizens to submit their views with the objective of influencing legislation.

The Odoki Commission prepared the Draft Constitution, which was to be debated by the Constituent Assembly before the promulgation of the new Constitution. Clause 65 of the Draft Constitution provided that “[e]very Ugandan citizen has the right to participate in the affairs of government, either directly or through representatives elected by the people in accordance with law”. During the Constituent Assembly debates, the Legal and Drafting Committee suggested that Clause 65 should be amended to “delete ‘either directly or through representatives elected by the people’ and insert instead ‘individually or through his or her representatives’ so that the Clause will read as follows: ‘Every Ugandan citizen has a right to participate in the affairs of the government individually or through his or her representatives in accordance with the law’.”Footnote ¹³ It was clarified that these changes were just “editorial”.Footnote ¹⁴ The right under Clause 65 was to be applicable to every citizen, including minority groups.Footnote ¹⁵ The Draft Constitution did not include a provision that dealt with every citizen’s “right to participate in peaceful activities to influence the policies of government through civic organisations”. This provision was added by the Legal and Drafting Committee, pursuant to a recommendation by some delegates to cater for “pressure groups”.Footnote ¹⁶ It is meant to ensure that citizens have “the wide latitude to exercise [their] rights”, and was adopted without debate.Footnote ¹⁷ It was explained that “the import of this provision is to influence government policies peacefully”.Footnote ¹⁸ During the Constituent Assembly debates, while discussing other clauses, many delegates argued that the new Constitution should provide for circumstances in which Ugandans will “participate in their governance”, so that people would “meaningfully participate in or influenc[e] the political, social, economic and cultural decision-making process”.Footnote ¹⁹ As one delegate put it, Ugandans should “have a right to lawfully participate in any activity” intended at influencing government policies.Footnote ²⁰ Participation could take various forms, such as electing representatives, holding legislators accountable (through being able to recall them) and ensuring that state institutions, including Parliament, comply with the Constitution when executing their mandates.Footnote ²¹ Systems and policies had to be put in place to ensure that Ugandans of all backgrounds are empowered to participate in their governance, including increasing the literacy rate in the country and civic education.Footnote ²²

Although the drafting history of Article 38 does not expressly state that citizens have a right to make submissions to Parliament for the purpose of influencing the law-making process, there is no doubt that the drafters of the Constitution understood democratic governance to mean, amongst other things, the right of citizens to influence government policies, including the legislative agenda. The drafters anticipated that participation be meaningful and expected public submissions to have an impact on policies in the same way submissions influenced the making of the Constitution. This is why some argued that civic education was necessary to enable citizens to influence government policy. Participation can be by individuals or groups of individuals. Those in Parliament are expected to be accountable to the citizens, meaning, amongst other things, that when citizens make submissions with the aim of influencing policies, parliamentarians have three obligations. First, they must receive the submissions and acknowledge them formally. Second, they must read and study the submissions carefully for the purpose of exploring the possibility of relying on them to make legislation; it is not enough to receive them and then just discard them. Third, where legislators do not find the submissions relevant in enacting legislation, they must expressly explain that in a report, which should respond to each of the submissions and explain why it was not relied on to make the law. Thus for citizens to meaningfully participate in the law-making process, Parliament has to give them reasonable time to study and analyse draft legislation; public participation should not be a cosmetic exercise.

The right to participate in law-making in practice

It is the government, through Parliament, which has the power to make laws, under Article 79 of the Constitution. However, citizens have a right to participate in the process. There are two ways to approach the nature of this right. The first, as mentioned above, is that this right is indirectly protected under Article 38 of the Constitution. As is the case with most rights, the right under Article 38 is subject to limitations under Article 43 of the Constitution, which provides that “any limitation of the enjoyment of the rights and freedoms” under the Bill of Rights has to be “acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution”.Footnote ²³ The second approach is that since this right is not expressly mentioned in Article 38, it should not be taken as implied there. Thus it is one of the rights contemplated under Article 45, which states 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”.Footnote ²⁴ In this case, the right to participation is not subject to Article 43, because this is only applicable to the rights expressly mentioned in the Bill of Rights. Courts will have to develop the grounds on which this right could be limited. In doing so, nothing prevents them from “adapting” the limitations under Article 43. Irrespective of which of the two approaches is adopted, this right is operationalized by Rule 135 of the Rules of Procedure of Parliament.Footnote ²⁵ Rule 135(1) provides that after a bill has been read the first time, it is referred to the appropriate parliamentary committee. Clauses 2–4 of Rule 135 state that:

Before April 2025, this issue was governed by Rule 129 of the 2021 Rules; it was renamed Rule 135 in the April 2025 version. Rules 129(1), (3) and (4) of the 2021 Rules were identical to Rules 135(1), (3) and (4) of the later version. However, there is a difference between Rule 129(2) and Rule 135(2); while the former provided that the Committee shall report to the House “within forty-five days”, the amendment introduced by Rule 135(2) in April 2025 changes the duration to “within forty-five working days” – thus weekends and public holidays are excluded, and the committees have been given more time. However, this procedure does not apply to urgent bills.Footnote ²⁶ Rule 135(2) obligates the Committee to “make all such inquiries” relating to the bill; these could be made to stakeholders, including members of the public. Rule 135(3) enables the public to propose amendments to the bill, and the Committee is obliged to scrutinize those amendments. If implemented correctly, Rule 135(2) enables Ugandans to participate in the law-making process meaningfully.

There are cases in which the Constitutional Court and the Supreme Court have dealt with the issue of public participation in the law-making process. The leading Supreme Court decision on this issue is Male Mabirizi, where one of the issues was whether Parliament had sufficiently consulted with Ugandans in the process of enacting legislation that amended the Constitution to remove the minimum and maximum age limit for the president. The justices expressed different views on the criteria that have to be used to assess whether Parliament enabled the public to participate sufficiently. The petitioners argued that since Ugandan law does not provide for the methods that Parliament should use to enable public participation, the Court should use the criteria set by the South African and Kenyan courts on the issue. However, the respondents argued that those foreign judgments were distinguishable and the principles therein were not applicable to Uganda, because unlike the legislation in those countries, Ugandan law is silent on the approaches that Parliament should use when consulting citizens in the law-making process. In his judgment, Justice Katureebe held that “[t]he basis for the requirement for consultation of and participation of the public in the conduct of legislation is based on recognition of the sovereignty of the people as enshrined in article 1 of the Constitution. The people have the sovereign right to choose who governs them and how they should be governed.”Footnote ²⁷ He referred to Article 1 of the Constitution and held that Ugandans can participate in the law-making process directly or through their elected representatives, adding that “it is expected that when making a law that is so fundamental to the people’s existence and well-being, they [the legislators] must consult their electorate. It is however important to note that, in Uganda, the manner and form of public consultation is not set out either under the Constitution or any enabling law.”Footnote ²⁸ He disagreed with the Kenyan Constitutional Court’s decision that public consultation “has to be a fully quantitative exercise” involving legislators arranging consultative meetings in different parts of the country and using other forums such as radio and television stations.Footnote ²⁹ He also emphasized that there is a difference between participating in the law-making process and in a referendum; the former does not have to be as intensive as the latter. He referred to Articles 1(4), 38, 63(1) and 78 of the Constitution and held that:

He emphasized that legislators have the discretion to determine the methods used in consulting with their voters, and added that it is unconstitutional for security agencies to prevent legislators from consulting with their electorate.Footnote ³¹

In her judgment, Justice Arach-Amoko agreed with Justice Katureebe that unlike the constitutions or legislation in some countries, such as Kenya and South Africa, the Constitution of Uganda provides for citizen participation in the law-making process in general terms. She added that the Constitution “does not provide a mode of consultation and participation neither does it provide a yard stick for setting standard measures for consultation”, and that “there is no law that lays down a structural modus operandi for public consultation”.Footnote ³² Relying on South African case law, she held that what is required of the legislature is to give Ugandans a “reasonable opportunity” to participate in the legislative process, and that “what amounts to a reasonable opportunity will depend on the circumstances of each case”.Footnote ³³ She added that Parliament has to provide meaningful opportunities and put in place measures for the people to participate in the law-making process. She referred to South African case law to explain the meaning of reasonableness in this context.Footnote ³⁴ Unlike Justice Katureebe, Justice Arach-Amoko agreed with the Kenyan Constitutional Court decision that public participation has to be both qualitative and quantitative, adding that South African and Kenyan case law on public participation was “persuasive”.Footnote ³⁵ She also agreed with Justice Katureebe that it was unconstitutional for the security agencies to prevent some legislators from consulting with their electorate, and said that there was evidence that the “committee met and even received comments and views from the public and institutions” on the issue of the age limit.Footnote ³⁶ She stated that the evidence showed that “the Committee had extended invitations to identified stake holders and other interested parties to appear before it and submit their views on the Bill”, concluding that there was sufficient consultation in the process of enacting the Act.Footnote ³⁷

Justice Mwangusya also held that it was unconstitutional for the security agencies to prevent some legislators from consulting with their electorate.Footnote ³⁸ Although he reproduced the parties’ submissions relying on South African and Kenyan case law on the issue of public participation in the law-making process, he did not express an opinion on whether these cases were persuasive.Footnote ³⁹ Justice Opio-Aweri, meanwhile, referred to Article 1(1) of the Constitution and held that “public participation is an essential and integral [part] of our Constitution”.Footnote ⁴⁰ However, unlike Justices Katureebe and Arach-Amoko, his decision is silent on the issue of public participation; thus he does not discuss the Kenyan and South African cases at all. Justice Tibatemwa-Ekirikubinza also reproduced the parties’ submissions on the Kenyan and South African case law and indicated that the respondent’s evidence showed, inter alia, that “the report of the Parliamentary and Legal Affairs Committee included a list of 53 stakeholders from Civil Society organizations, prominent Constitutional law scholars and other interest groups who submitted their views on the Bill to the Committee”.Footnote ⁴¹ She explained the importance of public participation in the constitution-making process and referred to Objective Principle II(i) and to international human rights instruments to emphasize the importance of the right of citizens to participate in governance.Footnote ⁴² She held that there are different ways in which public participation in the constitution-making process can take place, and that since the legislation does not prescribe any particular form, “one can come to the conclusion that this Court would not be in [a] position to question the modes of consultation adopted by Parliament”.Footnote ⁴³ She held further that had not there been evidence to prove that the police had prevented some legislators from consulting with their electorate, she would have been prepared to find that “the body to determine the requisite standard of public consultation should be Parliament”, concluding that preventing legislators from consulting with their electorates was contrary to Objective Principle II(i).Footnote ⁴⁴ She explained how the security agencies prevented some legislators from consulting with their voters;Footnote ⁴⁵ she added that “when Parliament chose to invoke consultations on … the impugned Act, it brought itself under Articles 38 of the Constitution” and concluded that “[t]he right to participate in the affairs of government no doubt accrues to each and every citizen and its violation cannot, on the basis of numbers, be deemed ‘inconsequential’”.Footnote ⁴⁶

Justice Mugamba also referred to the parties’ submissions referring to Kenyan case law on public participation in the law-making process and observed that these cases were “persuasive”.Footnote ⁴⁷ However, he did not refer to these cases in his finding. He held that some legislators were prevented from consulting with the electorate but he was unable to pronounce himself “on the extent of public participation countrywide”.Footnote ⁴⁸ However, he stated that “the unlawful and unconstitutional actions of the police force rendered the attempts at public participation and consultation futile”.Footnote ⁴⁹ Justice Tumwesigye likewise referred to the parties’ submissions on the Kenyan and South African cases on public participation.Footnote ⁵⁰ He reproduced the respondents’ submissions that after the first reading of the bill, “notices of invitation … were published in the print media inviting all persons who wished to participate in the process to do so … [F]ifty four groups of persons, legal and natural, heeded the invitation, including the President of Uganda and registered political parties.”Footnote ⁵¹ Referring to the Kenyan and South African cases, he held that:

He referred to international human rights instruments which provide for citizens’ right to participate in governance.Footnote ⁵³ He also quoted the relevant paragraphs of the Kenyan and South African cases requiring that public participation should be both quantitative and qualitative, and held that on the evidence before the Court, public consultation had been adequate.Footnote ⁵⁴

The above decisions show that Justice Katureebe disagreed with the criteria for public participation set by the Kenyan Constitutional Court and did not express his opinion on the criteria set by the South African Constitutional Court. Justice Arach-Amoko agreed with the criteria set by both the South African and Kenyan constitutional courts on the modes and quality of participation and found these decisions persuasive. Justices Mwangusya and Opio-Aweri did not express their opinions on whether or not the South African and Kenyan cases were persuasive, and in fact did not reproduce these cases in the operative parts of their decisions. Justice Tibatemwa-Ekirikubinza referred to the South African and Kenyan cases but did not rely on them in explaining the importance and forms of public participation in the constitution-making process. Although Justice Mugamba referred to the South African and Kenyan cases and observed that the Kenyan cases were “persuasive”, he did not rely on them in resolving the issue of public participation. Finally, Justice Tumwesigye found the Kenyan and South African cases persuasive.

Thus, out of the seven justices, only Justice Katureebe cast doubt on the criteria set by the Kenyan cases; three justices found these decisions persuasive and two of these three relied on them. The other three justices did not criticize these decisions. One, Justice Tibatemwa-Ekirikubinza, did not discuss the issue of public participation in the law-making process generally; her discussion was limited to the specific issue of public participation in the constitution-making process. This creates room for two potentially irreconcilable arguments: first, that the three justices who did not criticize the Kenyan and South African decisions did not find the criteria for public participation therein problematic, as otherwise they would have taken the same approach as Justice Katureebe and held expressly that those criteria were not applicable to Uganda. The second argument is that the silence of three justices on this issue implied that they did not find those decisions persuasive. This is strengthened by the fact that they did not rely on them in deciding the issue on public participation.

In my view, neither of the above two sides can confidently claim that the three “neutral” judges belong to it. The preferable approach is to treat their decisions on whether or not the Kenyan and South African decisions were persuasive as being neutral. This means that the position of the three justices Arach-Amoko, Mugamba and Tumwesigye should be taken as the decision of the Court on this issue, that is, that public consultation must be as rigorous as is stipulated in the Kenyan and South African decisions. Even if we exclude the decision of Justice Mugamba, on the ground that he referred to the Kenyan and South African decisions as being persuasive but did not rely on them in deciding the issue of public participation, the two decisions of Justices Arach-Amoko and Tumwesigye still outweigh that of Justice Katureebe. Thus it is safe to say that according to most of the justices of the Supreme Court in this case, public participation in the law-making process must be as rigorous as stipulated in the Kenyan and South African decisions. This conclusion is supported by the fact that all the justices found that there was indeed sufficient public participation at the committee level, and all agreed with the respondent’s argument that Parliament had published notices in the print media inviting persons who wished to participate to do so and that as a result, the committee received stakeholder submissions from civil society organizations, scholars of constitutional law and other interest groups. This indicates that there was sufficient time and opportunities for citizens to make their submissions. Therefore the Court agreed unanimously that there was sufficient public participation at the committee level.

Since the Supreme Court’s decision, the Constitutional Court has handed down three judgments on public participation in the law-making process. Unlike in the case of the Supreme Court decision, where the Act in question was meant to amend the Constitution and public consultations had to take place at the committee level and in different parts of the country, these decisions dealt with instances in which public consultation was limited at the committee level. The first decision was that on Centre for Health, Human Rights and Development and Other v Attorney-General and Another, in which the Court relied on Justice Katureebe’s decision in Male Mabirizi to hold that the South African and Kenyan cases referred to by the Supreme Court were not applicable to Uganda and that Parliament did not have to consult with the people who were to be affected by legislation in the process of enacting it.Footnote ⁵⁵ Since the Court’s conclusion in this case is similar to its conclusion in the third case discussed below, there is no need to discuss it in detail here. The second decision was that of Wakiso Miraa Growers and Dealers Association Limited v Attorney-General, in which the petitioners argued, inter alia, that the impugned legislation was unconstitutional because “there was no public participation in the process of the formulation and enactment” of the same.Footnote ⁵⁶ However, the Court did not resolve the issue, which could be explained by the fact that it found the legislation unconstitutional on the ground that there was no quorum in Parliament when it was passed. The third and most recent Constitutional Court decision on public participation in the law-making process is that of Hon. Fox Odoi. Since this decision is detailed and was handed down almost five years after the Supreme Court’s decision in Male Mabirizi, it is important to assess the extent to which the Constitutional Court followed the Supreme Court’s decision as it is required to under Article 132(4), which provides, inter alia, that “all other courts shall be bound to follow the decisions of the Supreme Court on questions of law”. In Hon. Fox Odoi, one of the issues before the Court was whether Parliament afforded the public sufficient time to participate in making the Anti-Homosexuality Act (2023). The petitioners argued that:

Relying on cases in South Africa and the United Kingdom, they argued that the approach adopted by Parliament in enacting the legislation did “not meet the qualitative and quantitative test” contemplated in Article 38(2), amongst other provisions, and in the relevant foreign case law. This was because there was no adequate time for Ugandans to participate in the process.Footnote ⁵⁸ They also argued that the committee allocated only three days to the consultation process and that some of the petitioners and “several individuals and organizations that were invited to interact with the Committee were given notice of less than 24 hours to prepare and in some instances were accorded only 15 minutes to present their submissions”.Footnote ⁵⁹ They argued that this approach did not meet the threshold of meaningful public participation as contemplated in the relevant South African case law, and added that of the 30 submissions received by the committee, most of them were made by people who supported the bill and that the committee’s approach was contrary to Rule 129(2) and Article 38(2) and to the criteria of meaningful public participation as set in the Kenyan and South African case law.Footnote ⁶⁰

In reply, the respondents submitted that “the public did participate in the enactment of the Act by representation through their MPs, as well as through views expressed in the media and presentations” made to the relevant parliamentary committee; they added that this approach complied, inter alia, with Article 38 and the Supreme Court’s decision in Male Mabirizi.Footnote ⁶¹ They stated that the debates in Parliament during the second reading of the bill referred to many of the views that members of the public had expressed in the media on the issue of homosexuality, and argued further that under Rule 129(2) (now Rule 135(2)), Parliament has discretion to determine what it considers to be “expedient or necessary” and that the petitioners’ understanding of “public participation would have the effect of establishing a non-existent rule about meaningful participation”.Footnote ⁶² They added that in drafting the bill, public consultations took place because the Committee “solicited written and oral submissions from various stakeholders … undertook a meticulous examination of the Bill, and made such inquiries as it considered expedient and / or necessary”.Footnote ⁶³ It was also argued that none of the petitioners was denied an opportunity to make oral or written submissions to the committee, and that the “45-day rule … is a maximum period to cover public consultation, examination of the Bill and reporting back to the House, and [is] not solely restricted to public inquiries”.Footnote ⁶⁴ They added that Parliament had to pass the bill “urgently” because most Ugandans wanted the government to protect children against homosexuality. They also argued that there was “country-wide consultation” on the bill as evidenced by the various oral and written submissions, and that the legislators who “participated in the enactment of the impugned Act provided nation-wide representation within the confines of Articles 1, 38 and 79 of the Constitution”.Footnote ⁶⁵ They emphasized that public consultations on the bill indeed took place.Footnote ⁶⁶

Before resolving the issue of whether Parliament upheld citizens’ right to participate in the law-making process, the Court first reproduced, inter alia, National Objective II(i) and Article 38, adding that it agreed with its previous case law in which these were interpreted literally.Footnote ⁶⁷ The Court added that the petitioners’ understanding of public participation was based on the criteria set by the South African Constitutional Court in the Doctors for Life International case. It held that it was “unable to abide the petitioners’ propositions” that the criteria of what amounts to meaningful public participation were established in the case of Doctors for Life International because “they would not be tenable in a modern democracy that derives its legitimacy from the broad concepts of political participation and representation”.Footnote ⁶⁸ It stated that in Male Mabirizi, Justices Arach-Amoko and Katureebe held that what amounts to adequate public participation in the law-making process will depend on the unique circumstances of each case.Footnote ⁶⁹ It added that in that case, Justice Katureebe expressly held that the criteria stipulated by the Kenyan court were not applicable to Uganda. It also held that unlike the South African legislation, which specifically provides the modes of public participation in the law-making process, Ugandan legislation is silent on that issue, and thus the criteria set by the South African Constitutional Court are not applicable to Uganda.Footnote ⁷⁰ Its understanding of the Supreme Court’s decision in Male Mabirizi was that:

It emphasized that its understanding of the Supreme Court’s decision was that the criteria developed by the South African and Kenyan constitutional courts were “inapplicable to Uganda’s constitutional dispensation”.Footnote ⁷² It also held that Objective Principle II(i) and Article 38 do not “oblige the Ugandan Parliament to facilitate Ugandans’ participation in the public consultation process”.Footnote ⁷³ It added that there is a difference between political participation, which deals with the right to take part in public affairs and to vote, and the right to participate in the law-making process.Footnote ⁷⁴ Relying on Justice Katureebe’s decision in Male Mabirizi, it added that under Article 38(1), Ugandans can participate in the governance of the country through their representatives unless the law specifically requires otherwise, for example in the case of a referendum.Footnote ⁷⁵ Rule 129(2) did not “impose a constitutional obligation upon the Committee to undertake the extensive and protracted consultations” as provided for in the Kenyan and South African cases.Footnote ⁷⁶ It held further that there was evidence that the committee received and considered the views of the sexual minorities, and outlined the names of all the entities (private and public) and individuals that made oral and written submissions to the committee.Footnote ⁷⁷ However, the Court rebuked the committee for its failure to give two individuals “audience before it upon their request”.Footnote ⁷⁸ The Court concluded that:

Against that background, the Court held that Article 38, amongst other provisions, had not been violated.

Four observations should be made about the Constitutional Court’s reliance on the Supreme Court’s decision to conclude that the petitioners’ right to participate in the law-making process was not violated. First, it is true, as the Constitutional Court observed and as illustrated above, that Justice Arach-Amoko held that “what amounts to a reasonable opportunity will depend on the circumstances of each case”.Footnote ⁸⁰ However, for reasons better known to itself, the Constitutional Court ignored the fact that Justice Arach-Amoko’s conclusion was reached after quoting heavily, and with approval, the Kenyan and South African cases which, surprisingly, the Constitutional Court found to be inapplicable to Uganda. In other words, the Constitutional Court cherry-picked a sentence from Justice Arach-Amoko’s decision which served its interest. Had it understood that sentence in the context in which it was made, it would have held, as Justice Arach-Amoko did, that the criteria set by the Kenyan and South African constitutional courts are applicable to Uganda. Second, the Court for unclear reasons also chose to ignore the fact that three justices of the Supreme Court found the Kenyan and South African cases persuasive and that two of them expressly adopted the criteria set in those cases and held that the Ugandan Parliament should have followed them to ensure meaningful participation. Hence the Constitutional Court should have compellingly explained why it went against the clear position of these Supreme Court justices. Third, and related to the above, the Constitutional Court relied heavily on Justice Katureebe’s view that the criteria set in the Kenyan and South African cases were not applicable to Uganda. However, as explained above, this was the only decision in which it was expressly held that those cases were not applicable to Uganda. The Constitutional Court should have explained why it relied on a single decision which was contrary to the view held by the other justices. Fourth, the facts before the Supreme Court in Male Mabirizi were different from those in Hon. Fox Odoi in one important way: in the former case, the committee received over 50 submissions from different individuals and the consultation period took several days. Thus whoever wanted to make submissions was able to do so. Hence there was a reasonable opportunity for people to make submissions. However, in Hon. Fox Odoi, the consultation took a few days, some people were not allowed to make their submissions and many of those who made submissions were given only a few minutes to do so. The whole process fell far below what the Supreme Court considered to be meaningful participation, and far below what the drafters of the Constitution contemplated when they enacted Article 38. Against that background, it is important to demonstrate how the different parliamentary committees enable citizens to participate in the law-making process.

The consultation process in the making of legislation

As mentioned above, Rule 135(2) requires the Committee to “examine the bill in detail and make all such inquiries in relation” to it as it “considers expedient or necessary and report to the House within forty-five working days”. A study of the bills enacted between February 2024 and May 2025 shows that different committees were inconsistent in the manner in which they conducted public consultations, the number of meetings held with stakeholders or the number of submissions received from them.Footnote ⁸¹ For example, different committees held meetings or received submissions from one,Footnote ⁸² two,Footnote ⁸³ three,Footnote ⁸⁴ four,Footnote ⁸⁵ five,Footnote ⁸⁶ eight,Footnote ⁸⁷ ten,Footnote ⁸⁸ fourteen,Footnote ⁸⁹ sixteen,Footnote ⁹⁰ twenty-twoFootnote ⁹¹ and over thirty stakeholders.Footnote ⁹² In some cases, some of the stakeholders were based abroad.Footnote ⁹³ Although in most cases the stakeholders were both from government and from private bodies or individuals, there are instances in which all the stakeholders were from government (different government ministries or bodies).Footnote ⁹⁴ Some of the committees submitted their reports several weeks or months after the first reading of the bills, including cases where they were submitted almost two,Footnote ⁹⁵ three,Footnote ⁹⁶ fiveFootnote ⁹⁷ or six months later.Footnote ⁹⁸ However, other committees submitted their reports shortly after the first reading, for example five,Footnote ⁹⁹ six,Footnote ¹⁰⁰ seven,Footnote ¹⁰¹ eight,Footnote ¹⁰² nine,Footnote ¹⁰³ fourteen,Footnote ¹⁰⁴ nineteen,Footnote ¹⁰⁵ twenty-eightFootnote ¹⁰⁶ or thirty days later.Footnote ¹⁰⁷ The practice shows that in almost all the instances where the committees consulted few stakeholders or submitted their reports shortly after the first reading, the bills were not controversial and did not attract public interest. This is evident from, for example, the fact that there were no minority reports.Footnote ¹⁰⁸ However, one bill, the Uganda Peoples’ Defence Forces (Amendment) Bill, was controversial. Because of the fact that it was the most controversial bill during the period of study, it is important to discuss the extent to which the public participated in its enactment and to compare and contrast it with the approaches taken by different committees when processing other bills, as illustrated above.

The 2005 Uganda Peoples’ Defence Forces (UPDF) Act provided for, inter alia, the circumstances in which civilians may be tried before courts martial; on the basis of these provisions, many civilians were court-martialled. On 31 January 2025, the Supreme Court held that the trial of civilians before courts martial was unconstitutional, because, inter alia, such courts lacked the necessary independence and impartiality to guarantee a fair trial.Footnote ¹⁰⁹ The president of Uganda argued that the Supreme Court’s decision was wrong and vowed to have the UPDF Act amended to reintroduce the trial of civilians before courts martial, amongst other things.Footnote ¹¹⁰ On 2 May 2025, the Uganda Peoples’ Defence Forces (Amendment) Bill was published in the government gazette; it had 84 clauses, including some on the trial of civilians before courts martial.Footnote ¹¹¹ The first reading of the bill took place on 13 May 2025, amid protests from the Leader of the Opposition that he had not received the official copy of the bill and that the unofficial draft bill he had seen was unconstitutional as its objective was to alter or change the decision of the Supreme Court prohibiting the trial of civilians before courts martial.Footnote ¹¹² However, the Speaker dismissed those objections and referred the bill to the relevant committees under Rule 135. She added that since the bill was “straightforward”, she expected the Joint Committee on Defence and Internal Affairs and Legal and Parliamentary Affairs to handle it as soon as possible and present it for the second reading “soon”.Footnote ¹¹³

The Joint Committee studied the bill and invited a few individuals to make submissions on it. The Uganda Law Society declined the committee’s invitation to make submissions because it received the invitation ten minutes before the commencement of the scheduled session.Footnote ¹¹⁴ The Joint Committee members wrote two reports: the majority report (signed by 27 members) and the minority report (signed by 14 members).Footnote ¹¹⁵ The majority report stated that the Joint Committee met with and received written memoranda from the Ministry of Defence and Veteran Affairs, the Attorney General, the Office of the Director of Public Prosecutions, Jude Byamukama (the Advocate of the High Court), and the organization Kampala Reduction in Force UPDF Veterans.Footnote ¹¹⁶ On the issue of the trial of civilians before military courts, which was the most contentious issue in the bill, the majority report also showed that “[s]ome witnesses objected to trying civilians in military courts, arguing that the Supreme Court’s interpretation prohibits such actions. In contrast, other Committee members and stakeholders, including the Attorney General and the Minister of Defence, contend that the Supreme Court did not fully ban civilian trials in military courts, suggesting instead that such trials could occur under exceptional circumstances.”Footnote ¹¹⁷ On the issue of public consultation, the minority report stated that:

The second reading of the bill took place in Parliament on 20 May 2025. Most opposition legislators walked out during the second reading as they were opposed to, inter alia, the clauses authorizing the trial of civilians before courts martial and the “sham process” that the committee followed to prepare the bill.Footnote ¹¹⁹ Nevertheless, the bill was passed the same day.Footnote ¹²⁰ The president assented to the Act on 12 June 2025 and it commenced on 27 June 2025.

The approach taken by the Joint Committee when dealing with public consultation raises two important issues: the number of stakeholders who made submissions to the committee and the time allocated for such submissions. As the discussion above has shown, there were instances in which very few people made submissions to the committees and where very little time was allocated to processing some bills. However, these were cases where the bills were not controversial and did not attract much public interest. The discussion above shows that in cases of controversial bills, such as those dealing with the presidential age limit and with homosexuality, the relevant committees received several submissions. Thus the more controversial the bill, the more time should be allocated to public participation to enable as many people as possible to make submissions. As has been illustrated above, the Joint Committee processing the UPDF (Amendment) Bill received submissions from five stakeholders; two, the Attorney General and the Minister of Defence, supported the trial of civilians before military courts in exceptional circumstances. The submission by the Office of the Director of Public Prosecutions opposed the clauses that gave the courts martial jurisdiction over many offences and over civilians. In his submission, Advocate Jude Byamukama opposed the trial of civilians before courts martial, and the submission by Kampala Reduction in Force UPDF Veterans focused on the issue of pensions.Footnote ¹²¹ The minority report also opposed the trial of civilians before courts martial. This suggests that if the committee had allowed more time for consultation, there was a very high possibility that many more people would have made submissions objecting to such trials, since many citizens were interested in interacting. This would not have been the first occasion such time was extended: as the discussion above has shown, there were instances in which the committees took between two and six months to submit their reports. This was the case even when the bills were not controversial. The committee’s decision to recommend the trial of civilians before courts martial despite the strong opposition from some committee members, legislators, stakeholders and most Ugandans (as could be gathered from the media) suggests that the decision did not serve the interests of the majority. In other words, the committee misrepresented Ugandans, as opposed to representing them, contrary to the spirit of Article 38. Thus there is room for the argument that citizens did not get a meaningful opportunity to participate in the making of the UPDF (Amendment) Bill.