THE RULES FOLLOWED IN CONSTITUTIONAL

INTERPRETATION: A CASE OF UGANDA

Alexander Ssensikombi1
Constitutional interpretation, or constitutional construction, is the process by which meanings
are assigned to words in a constitution, to enable legal decisions to be made that are justified by
it2.The Constitution is a legal document that is Sui Generis and must be construed as a special
document. The interpretation of the Constitution is provided for under Art. 257 of the 1995
Constitution of Uganda (herein referred to as “the Constitution”). Courts are often alive to its
peculiar nature and have over the years developed principles followed in interpretation of the
Constitution and these are discussed below:-

The Sui Generis Rule;

According to Latin for Lawyers3 the word ‘sui generis’ means “Of its own kind. Unique; in a class
by itself. Different from others”. The Constitution is a mechanism under which laws are to be
made and thus stands on a very different footing from other legislation even though in fact the
principles which govern other legislation for the most part also govern the interpretation of the
constitution. Article 2(2)4 states that “if any law or any custom is inconsistent with any of the
provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall,
to the extent of its inconsistency be void”. In Tumushabe v Attoney-General5 the Constitutional
Court emphasized the supremacy and binding force of the Constitution. The Court held that “The
law that governs bail in Uganda is contained in Article 23(6) (a) (b) and (c) of the Constitution. All other
laws on bail in this country that are inconsistent with or which contravene this Article are null and void
to the extent of inconsistency”. The supremacy of the Constitution had earlier been stated by the
same court in Ssebagala v. Attorney-General & 2 Ors6 when it found that even though the Local
Government Act incorporated provisions from the constitution, it didn’t deprive the Constitution

1
LLB Uganda Christian University (UCU), Kampala Campus | assensikombi@gmail.com ; A73024@students.ucu.ac.ug
2
Principles of Constitutional Construction - http://www.constitution.org/cons/prin_cons.htm
3
Emanuel, L (1999) (1st edition) p 402
4
The Constitution of the Republic of Uganda, 1995
5
Constitutional Petition No. 6 of 2004
6
Constitutional Petition No. 1 of 1999
1

Electronic copy available at: https://ssrn.com/abstract=2942879

of its supremacy. It is in the same spirit that also the reason why the wording used in the
Constitution is much broader as compared to other forms of legislation. It is also evidenced in
Article 274(1)7 – this provision as was held by Mpagi-Bahigeine, JA (as she was then) in Attorney-
General v. Osatraco8 “enables the court to expedite justice by construing unjust and archaic laws
and bringing them in conformity with the Constitution, so that they do not exist and are
void”.The rationale of all this is to cater for all rights and freedoms for all people without
discrimination and because it is made for present generations and those unborn; this is majorly
why when interpreting the constitution, Courts are always alive to the fact that the constitution
is the supreme law of the land and furthermore that all other laws have to be in conformity with
this law.

The Constitution must be interpreted as an integral whole

This is to mean that the instrument being considered must be treated as a whole and all
provisions having a bearing on the subject matter in dispute must be considered together as an
integrated whole9. It is well settled that a Constitution must not be construed in any narrow or
pedantic sense and that construction, which is most beneficial to the widest possible amplitude
of its power must be adopted. An exclusionary clause in any of the entries should be strictly and
therefore narrowly construed. No entry should however be read as not to rob it of entire
content10. It was settled by the US Supreme court case of South Dakota v. North Carolina11 that
“no single provision of the constitution is to be segregated from the others and to be considered
alone but that all provisions bearing upon a particular subject are to be brought into view and to
be so interpreted as to effect the greater purpose of the instrument”. In Tinyefuza v Attorney-
General12 Court held that the entire constitution has to be read as an integrated whole and no
one particular provision destroying the other but each sustaining the other. This is the rule of
harmony, rule of completeness and exhaustiveness and the rule of supremacy of the written

7
“Subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution
shall not be affected by the coming into force of this Constitution but the existing law shall be construed with such
modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this
Constitution”
8
CACA no. 32 of 2002
9
Charles Onayngo Obbo & Anor v. Attorney-General Constitutional Petition no. 15 of 1997
10
Synthetics and Chemicals Ltd v. State of Up (1990) AIR 1927
11
192 US 268 (1940) 448
12
Constitutional Petition No. 1 of 1996
2

Electronic copy available at: https://ssrn.com/abstract=2942879

constitution. Manyindo DCJ (as he was then) observed that of the principle as follows “The entire
constitution has to be read as an integrated whole and no one particular provision destroying the other but
each sustaining the other. This is the rule of harmony completeness and exhaustiveness and the rule of
paramouncy of the constitution. Oder JSC (as he was then) on appeal of the same seemed to share
the same belief as he found that another important principle governing interpretation of the
Constitution concerning an issue should be considered all together. The constitution must be
looked at as a whole. Therefore” …the constitution being a logical whole, each of the provisions
is an integral part thereof and it is therefore logically proper and indeed imperative, to construe
one part in the light of the provisions of the other part”. Therefore the constitution as a
wholesome legal document and all provisions must be regarded as constituting it. The normal
logic in this canon is that in order to ascertain the true meaning and intention of the legislators,
all relevant provisions must be considered. It’s thus dangerous to consider any particular article
in isolation of all others and any court which tries to do this is bound to get an inconsistent
conclusion.

Words must be given their natural and ordinary meaning where they are not ambiguous13.
Where words are clear and unambiguous, the courts have given them their plain, ordinary and
natural meaning. The provisions in the constitution should be construed in such a way that they
are given their literal meaning. The Courts labour to bring out the original meaning the writers
of the constitution intended to presume at the time it was promulgated. Twinomujuni JA further
stated in the case of Onyango-Obbo & Anor v. Attorney-General (supra) that “words must be
given their natural and ordinary meaning where they are not ambiguous”. If the words of the
statute are themselves precise and unambiguous, then more can be necessary than to expound
those words in their ordinary and natural sense. The words themselves do in such a case best
declare the intention of the law giver. Where the language of the Act is clear and explicit, we
must give effect to it whatever may be the consequence for in that case the words of the statute
speak the intention of the Legislature.

The Meaningful and Effective rule of interpretation

13
Charles Onyango Obbo & Anor v. Attorney-General Constitutional Petition no. 15 of 1997
3
Notwithstanding the previous principle, where the language of the constitution is imprecise or
ambiguous, then liberal, flexible and purposive interpretation must be given to cure the
ambiguity. The rationale for this is that the Constitution is not an ordinary statute capable of
amendment as and when legislators choose. In Salvatori Abuki v Attorney-General14 Okello J
held that “if the purpose of the statute infringes a right guaranteed by the constitution, that
impugned statute is also declared unconstitutional”. The interpretation should be a generous one
rather than a legalistic one aimed at fulfilling the purpose of the guarantee and securing for
individuals the full benefit of the charter’s protection; thus the courts should construe the
constitution “not in narrow and legalistic way but broadly and purposively so as to give effect to
its spirit and this is particularly true of provisions which are concerned with the protection of
constitutional rights. The generous construction means that courts “must interpret the
constitution in such a way as not to whittle down any of the rights of freedom unless by very
clear and unambiguous words such interpretation is compelling15 hence this flexible and
purposive interpretation without having to amend the constitution, the meaning of a phrase or
term to accord it with the legislative effect16.

The constitution as a living document. Courts must look upon a Constitution as a living and
organic thing and must adapt itself to the changing situation and a pattern in which it has to be
interpreted. This implies that the constitution should be constructed in a manner that caters for
the changing social and political changes in the environment. The courts have the duty of
breathing life into the constitution and thus keeping it applicable even for the future generations.
This makes it easier for the courts when interpreting the constitution. In Tinyefunza v Attorney-
General (supra) that “while the language of the Constitution does not change, the changing
circumstances of a progressive society for which it was designed may give rise to new and fuller import to
its meaning. A Constitutional provision containing a fundamental right is a permanent provision intended
to cater for all time to come and, therefore, while interpreting such a provision, the approach of the Court

14
Constitutional Petition no. 2 of 1997
15
Unity Dow v. Attorney-General of Botswana (1992) LRC 623
16
This was applied with equal force to the right of life as protected under the Constitution of Uganda case Salvatori Abuki v
A.G (supra) In this case the petitioners were banished from their homes for 10years after serving a prison sentence for
contravention of the Witchcraft Act. The Constitutional Court struck down the Act as being unconstitutional and
inconsistent with the constitution which guaranteed citizens from cruel, inhuman or degrading treatment. Court took judicial
notice of the fact that most people in Uganda live in rural areas and survive on land. Court considered that banishment
provisions denied the petitioners access to land and that such a person would be rendered a destitute upon leaving prison
4
should be dynamic, progressive and liberal or flexible, keeping in view ideals of the people, socio-economic
and politico -cultural values so as to extend the benefit of the same to the maximum possible. In other
words, the role of the Court should be to expand the scope of such a provision and not to extenuate it”. It is
only prudent to note that the 1995 Constitution was clearly drafted alive of the history of Uganda
and with a bird’s eye view of the future.

The preamble and the national objectives and directives of the state must when necessary be
taken into account to supply the intention of the framers. It is important to note that the
constitution was written against a murky history of tyranny, oppression, violation and abuse of
human rights and thus the framers intended to check such shortcomings when they were
promulgating the Constitution. The Courts labour to ensure that the objectives of the constitution
are not contradicted. In Zachary Olum & Anor v. Attorney-General17 Twinomujuni JA stated
that “In interpreting our Constitution this court must not lose sight of our chequered history on human
rights. The framers of the constitution had this in mind when they stated in the preamble: - "Recalling our
history which has been characterized by political and constitutional instability; Recognizing our struggle
against the forces of tyranny, oppression and exploitation; Do hereby, in and through this constituent
Assembly solemnly adopt, enact and give to ourselves and our posterity, this constitution of the Republic
of Uganda”. The same spirit had earlier been shared by Kanyeihamba JSC (as he was then) in
Attorney General v. Tinyefuza18 that “it is important to know the and appreciate the historical
and contextual background to the Uganda Constitution and the manner in which it carefully
demarcated responsibilities and functions amongst the various organs and institutions of state
before applying its provisions to given sets of facts and circumstances. Oder JSC (as he was then)
equally shared a similar view and reiterated that the preamble and directives must always be
borne in mind and also noted that the preamble refers to the struggle of the people of Uganda
against the forces of tyranny, oppression and exploitation.

Fundamental rights and freedoms guaranteed under the Constitution are to be interpreted
having general regard to evolving standards of human dignity. In such a way as to secure
maximum enjoyment of the rights and freedoms guaranteed. This is because fundamental
human rights are inherent and not granted by the state as held in article 20(1) of the Constitution.

17
Constitutional Petition no. 6 of 1999
18
Constitutional Appeal no. 1 of 1997
5
It was stated in the case of Rwanyarare & Ors v. Attorney-General19 by the learned judge Okello
JJA “we think that this court is competent to grant redress under article 50 of the constitution
where a fundamental right or freedom guaranteed under the constitution is infringed or
threatened upon determination of a petition brought under article 137(3) of the constitution.”. It
was further explained in Tinyefuza v. Attorney-General (supra) that “by stating that these rights
are inherent the Constitution is recognizing the inherent existence to that extent they must be
looked at in a different light from other rights created by law”.

International Human Rights Convention and treaties may be used in interpretation;

Uganda signed and ratified the International Convention on Civil and Political Rights (ICCPR),
African Charter on Human and People’s Rights (ACHPR) and Convention on Elimination of All
Forms of Discrimination against Women (CEDAW) among others. This implies that the country
consciously and decidedly chose to be bound by the international treaties it ratified, hence
undertaking the obligations dictated by these conventions. It is therefore the solemn duty of the
Courts to comply with the provisions of the Conventions20 in Constitutional interpretation..The
rationale is that whether ratified or not, these conventions contain universally recognised
human rights too which no civilised nation can derogate from. Even when they are yet to be
ratified, it is the clear duty of court to speed up this process by using them in interpretation of
this constitution. Article 45 caters for rights not specifically mentioned and the Court may use
aids in Construction that reflect an objective search for correct construction21.

In Conclusion, the general principles governing constitutional interpretation were ably

propound in the cases of Tinyefuza vs AG (supra)22 and restated in of Zachary Olum & Anor vs
AG23, and Rwanyarare & Anor vs AG (supra). All principles followed in Constitutional
interpretation uphold the notion that a Constitution is Sui Generis, the supreme law of the land
- a grand norm where all other statutes derive their legality from. This precise is why its
interpretation differs from other statutes.

19
Misc. Application no. 85 of 1993
20
Mayeso Gwanda v. the State (High Court Constitutional Cause no. 5 of 2015) (Malawi)
21
Tinyefuza v. Attorney-General; and also Susan Kigula and Ors v. Attorney General
22
and on appeal in Constitutional Appeal No.1 of 1997
23
Constitutional Petition No. 6 of 1999 (unreported)
6
 REFERENCES

The Constitution of the Republic of Uganda, 1995 (as amended)

Emanuel, L (1999). Latin for Lawyers: The Language of the Law, New York, Emanuel Publishing
Corp.
<http://www.politicalavenue.com/10862/The%20Ultimate%20Latin%20Language%20
Learning%20Pack/26%20Latin%20for%20Lawyers.pdf.>

Walubiri, M. P. (1998). Uganda Constitution at Crossroads, Kampala, Uganda Law Watch.

Tumwine-Mukubwa, G P. (2000) The Uganda Constitution 1995 and Human Rights

Interpretation and Enforcement of Chapter Four: Rights and Freedoms (no. 1 of 2000), The
Uganda Law Society Review.

Kanyeihamba, G W. (1975). Constitutional Law and Governance in Uganda: the theory and
practice of constitutionalism in Uganda. Kampala, East African Literature Bureau.

Okumu-Wengi, R. (ed). (2011). Founding the Constitution of Uganda; Essays & Materials:
Kampala, LawAfrica.

Principles of Constitutional Construction - http://www.constitution.org/cons/prin_cons.htm

International Convention on Civil and Political Rights (ICCPR)

African Charter on Human and People’s Rights (ACHPR)

Convention on Elimination of All Forms of Discrimination against Women (CEDAW)