Between a ‘flexible’ and ‘rigid’ interpretation of the list of prohibited grounds of discrimination under article 21(3) of the constitution of Uganda: Uganda Law Society and 12 others v Attorney General [2024] UGCC 2 (13 February 2024)

Abstract

Article 21 of the Constitution of Uganda (1995) provides for the right to freedom from discrimination. Article 21(3) provides that for the purposes of Article 21, discrimination ‘means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.’ 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.’ In Uganda Law Society and 12 others v Attorney General (13 February 2024), the Constitutional Court invoked Article 45 and held that the list of prohibited grounds under Article 21(3) is not exhaustive. In this article, the author relies on the drafting history of Article 21(3), the jurisprudence of the Supreme Court on Article 21(3) and the literal interpretation of Article 21(3) to argue that the list of prohibited grounds in Article 21(3) is exhaustive and that the Constitutional Court erred when it held to the contrary. The author argues further that Article 45 should not be relied on to read rights into the Constitution. It should be applicable to statutory or common law rights.