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.

Introduction

Article 21 of the Constitution of Uganda (1995) provides for the right to equality and freedom from discrimination. It states that:

(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

(2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.

(3) For the purposes of this article, “discriminate” 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.

(4) Nothing in this article shall prevent Parliament from enacting laws that are necessary for- (a) implementing policies and programmes aimed at redressing social, economic or educational or other imbalance in society; or (b) making such provision as is required or authorised to be made under this Constitution; or (c) providing for any matter acceptable and demonstrably justified in a free and democratic society.

(5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Constitution.

Strictly interpreted, Article 21(3) provides for an exhaustive list of the prohibited grounds of discrimination. As the discussion below illustrates, this was the intention of the drafters of the Constitution. This intention was also affirmed by the Supreme Court decision of Madrama v Attorney General ¹ in which the Court, by majority, held that the list of grounds under Article 21(3) is closed. Although Article 21 prohibits discrimination (negative discrimination), Article 23(4) provides for circumstances in which Parliament can enact potentially discriminatory laws (positive discrimination). In addition, Article 43 also provides for circumstances in which a right in the Bill of Rights may be limited. ² This implies, inter alia, that the constitutionality or otherwise of an alleged discriminatory legislation or practice has to be tested in the light of Articles 21(4) and 43. 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.’ As the discussion below illustrates, Article 45 is meant to deal with rights which are not ‘specifically’ mentioned in the Constitution. In Uganda Law Society and 12 others v Attorney General ³ the petitioners challenged the constitutionality of section 12(h) of Stamp Duty (Amendment) Act (2020) ⁴ on, amongst other grounds, that it discriminated against them on the grounds of social and economic standing. ⁵ This was because as private practitioners, it imposed on them stamp duty yet it did not impose the same duty (tax) on other professionals working in government departments. The Constitutional Court referred to Articles 21 and 45 and held that the list of prohibited grounds under Article 21 was not exhaustive. Against that background, and without expressly finding that the petitioners had been discriminated against on the basis of social or economic standing, it held that section 2(h) of the Stamps Duty (Amendment) Act was contrary to, inter alia, Article 21 and unconstitutional. In this article, the author argues that the Court’s decision is contrary to the literal interpretation of Article 21(3) and its drafting history. It is also contrary to the jurisprudence of the Supreme Court on this issue. The author argues that the list of the prohibited grounds of discrimination under Article 21(3) is exhaustive and Article 45 cannot be invoked to expand upon it. It is argued further that Article 45 deals with rights which are not specifically mentioned in the Constitution and should not be invoked to read rights into the Constitution. The author will start by highlighting the facts and issues before the Court and the Court’s decision. After that, the article will illustrate why the Court erred on the issue of discrimination.

Facts, issues and decision of the court

Parliament enacted section 2(h) of the Stamp Duty (Amendment) Act which imposed stamp duty on private practitioners in different sectors such as law, medicine and engineering. However, the same duty was not imposed on other professionals in the same sectors working in government departments. The petitioners argued that section 2(h) ‘negatively discriminates against private practitioners by placing a further burden on them as a class of professionals’ and that ‘such discrimination was on the ground of their social and economic standing.’ ⁶ They added that the differential treatment was not justified because its purpose was to demonise ‘the targeted category of persons and makes them feel less important and not much of practitioners, like their counterparts employed by government or other government bodies.’ ⁷ They argued that Article 21(3) of the Constitution defines discrimination but it ‘was not intended to limit the enjoyment of freedom from discrimination in aspects of life that were not mentioned in the provision.’ ⁸ In substantiating this submission, they relied on the ‘dictum’ in the Supreme Court decision of Madrama Izama v. Attorney General (which is discussed later in this article). ⁹ In response, the respondent argued that the impugned provision was not contrary to Article 21 of the Constitution because the differential treatment contained therein ‘does not fall within the ambit of discrimination that was envisaged’ under Article 21(3). ¹⁰ In other words, ‘the kind of discrimination complained about was not envisaged by the framers of Article 21 (3) of the Constitution; meaning that it does not fall within the categories listed therein.’ ¹¹ He added that professionals in the private sector and those in the public sector are regulated by different laws and that this did not amount to discrimination. ¹²

Before resolving this issue, the Court first outlined the principles of constitutional interpretation. ¹³ It also summarised the parties’ arguments on whether the impugned provision was contrary to Article 21 of the Constitution. ¹⁴ Against that background, it held that:

It is clear from clause (3) above that the framers of the Constitution identified common forms of discrimination in Uganda, mainly on the basis of our history as a nation. However, Article 45 of the Constitution provides as follows: ...The 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. Therefore, although certain elements of discrimination are specified in Article 21 (3) of the Constitution, Article 45 thereof is indicative of the fact that the list in the former is not exhaustive of what may be perceived to be discrimination. It should not result in the conclusion that discrimination that is prohibited by the Constitution consists merely of 15 the 11 or so sub categories that are listed in clause 3. The right to be free from discrimination will continue to evolve, on a case-by-case, basis as our jurisprudence on Article 21 of the Constitution grows. The argument that the petitioners’ complaint does not fall ·within the ambit of the categories identified in clauses (2) and (3) of Article 21 therefore has to be interrogated on the basis of the exemptions provided for in clause 4 thereof, which provides for the circumstances in which Parliament may lawfully enact laws that appear to be discriminatory of certain classes of persons. ¹⁵

The Court also discussed Article 21(4) and explained that section 2(h) of the Stamps Duty (Amendment) Act was not enacted to serve any of the purposes contemplated in that provision. ¹⁶ Against that ground, it concluded that ‘section 2(h) Act clearly contravenes and/or is inconsistent with Article 21 (1) and (3) of the Constitution.’ ¹⁷ The next part of the article analyses the Court’s decision.

Analysing the Court’s decision

The Court held that the list of the prohibited grounds of discrimination under Article 21(3) is not exhaustive. This conclusion is contrary to the drafting history of Article 21(3), to the literal interpretation of Article 21(3) and to the case law from the Supreme Court on Article 21(3). I will start with the drafting history of Article 21(3).

In 1988, the government of Uganda embarked on the process of enacting a new constitution to replace the 1967 Constitution. As a result, it established the Constitutional Commission. The Commission travelled to many parts of Uganda and collected peoples’ views on the issues they wanted to be addressed in the new constitution. People made oral and written submissions to the Commission. Some of these submissions dealt with the right to freedom from discrimination. ¹⁸ For example, the Commission reported that ‘[t]he right to equality has been undermined by deep-rooted attitudes and practices of discrimination on various grounds: sectarianism, nepotism and opportunism.’ ¹⁹ In its report, the Commission recommended, inter alia, that since Uganda had ratified the treaties that made-up the ‘international bill of rights’, the new constitution should prohibit discrimination based on the grounds provided for in international human rights treaties. ²⁰ It is against that background that it recommended that the new constitution should include a provision on the right to freedom from discrimination to the effect that ‘[n]o person should be discriminated against in the enjoyment of his or her rights and freedoms or in any way on the grounds of gender, race, colour, ethnic origin, religion, political opinion, social or economic status or any other ground.’ ²¹

It is evident that by using the words ‘any other ground’, the above recommendation had provided for an open-ended list of the prohibited grounds of discrimination. However, in the Draft Constitution which was debated by the Constituent Assembly to adopt the final Constitution, the Commission provided for an exhaustive list of the prohibited grounds of discrimination. Thus, Clause 50(4) of the Draft Constitution (1994) which would later become Article 21(3) provided that ‘[n]o person shall be discriminated against on grounds of sex, race, colour, ethnic origin, tribe, creed or religion, or social or economic standing or political opinion.’ It is evident that the words ‘any other ground’ were excluded. During the Constituent Assembly debates on Clause 50(4), the legislators added two other grounds which had not been included in Clause 50(4). These were disability and birth. They also argued that the prohibition of discrimination on the ground of ‘sex’ was only applicable men and women and must never be interpreted to mean sexual orientation. ²² The delegates were fully aware of the Constitutional Commission's report. That is why one of them argued that when drafting Clause 50(4) of the Draft Constitution, ‘the Commission left out [some grounds] intentionally’ and there was no need to reintroduce some of these grounds in the constitution. ²³ They also made sure that Clause 50(4) included all the grounds they wanted to include. That is why they added two more grounds. This means that they intended Article 21(3) to be exhaustive. Otherwise they would have retained the recommendation in the Constitutional Commission report to leave it open-ended. Therefore, the Court’s argument that the list of the prohibited grounds of discrimination under Article 21(3) is not exhaustive is contrary to the drafting history of this provision.

Related to the above, the literal interpretation of Article 21(3) supports the view that the list of prohibited grounds of discrimination therein is closed. Unlike in other parts Bill of Rights where the drafters left the list of human rights open by using words such as ‘including’ or ‘includes’, ²⁴ those words do not appear in Article 21(3). This strengthens the view that the list of prohibited grounds of discrimination under Article 21(3) is exhaustive. It also explains why the Constituent Assembly delegates did not insist on including the words ‘any other ground’ at the end of Article 21(3).

Furthermore, Article 132(4) of the Constitution provides that ‘[t]he Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.’ The drafting history of Article 132(4) shows that it was included in the Constitution without being debated. ²⁵ The Supreme Court is the highest court in Uganda. Thus, the Constitutional Court is bound to follow the decisions of the Supreme Court on questions of law. In Madrama v Attorney General ²⁶ the Supreme Court dealt with the issue of whether the list of prohibited grounds of discrimination under Article 21(3) is exhaustive. The appellant argued, inter alia, that section 10 of the Pensions Act was contrary to Article 21(3) of ‘the Constitution in so far as they allow forfeiture of accumulated benefits of an employee in public service who voluntarily leaves service without having attained the statutory minimum age.’ ²⁷ He argued specifically that section 10

[D]iscriminated on the ground of age in that a person who has not clocked the age of 45 years when he/she leaves after 10 years of service, does not get paid any terminal benefits but a person who has served for a similar period of time and is 45 years of age or above not only gets paid terminal benefits but also the periodic and monthly pension. ²⁸

The Supreme Court referred to Article 21 of the Constitution and held that although it prohibits discrimination, there are cases in which ‘preferential treatment to different categories of persons’ is permissible under Article 43 of the Constitution. ²⁹ The Court added that affirmative action is one of the circumstances in which preferential treatment does not amount to impermissible discrimination. ³⁰ In dismissing the appellant’s argument that he had been discriminated against on the ground of age, the Court, by a majority of five to two, referred to Article 21 of the Constitution and held that:

What amounts to discrimination has been defined under Article 21 (3)...The above provisions clearly show that age is not one of the parameters for determination of what constitutes discrimination. In any case, for any of the above named elements to amount to discrimination, it must be done outside the law and with a negative motive. As such, the argument by the appellant that he was discriminated against on the basis of age is not valid. ³¹

However, in their minority judgements, Justices Mwondha and Tibatemwa argued that Article 21(3) should have been interpreted broadly to include age as one of the prohibited grounds of discrimination. They relied mainly on foreign case law to substantiate their views. ³² None of them referred to the drafting history of Article 21(3) of the Constitution. Since their decisions were in the minority, they do not form precedent and do not have to be followed by lower courts. This could explain why even the Constitutional Court did not rely on them when discussing Article 21(3). Since the Supreme Court had held that the list of prohibited grounds of discrimination under Article 21(3) is closed, the Constitutional Court was bound to follow that decision. Its failure to follow the Supreme Court decision is aggravated by the fact that it, the decision of the Supreme Court in Madrama, was brought to its the attention. However, it only mentioned it as one of the authorities cited by the parties does and not explain why it did not follow it. This is contrary to Article 132(4) of the Constitution.

As mentioned above, the Court reasoned that ‘although certain elements of discrimination are specified in Article 21 (3) of the Constitution, Article 45 thereof is indicative of the fact that the list in the former is not exhaustive of what may be perceived to be discrimination.’ ³³ Plainly put, the effect of the Court’s judgement is that Article 45 can be invoked to add more rights to those which are already included in the Constitution. In other words, to expand on the list of constitutional rights. This view has been supported by some academics. ³⁴ It has also been adopted by both the Constitutional Court and the Supreme Court. For example, in Behangana and Anor v Attorney-General, ³⁵ the Constitutional Court held that Article 45 ‘relates to emergence of rights not enumerated in Chapter 4 of the Constitution.’ ³⁶ The Constitutional Court came to a similar conclusion in another case. ³⁷ In Busiku v Uganda, ³⁸ Supreme Court went to the extent of holding that Article 45 ‘incorporates other human rights and freedoms although they may not be specifically mentioned in the Constitution.’ ³⁹ This implies that Article 45 incorporates those rights in the Constitution. One of the Justices of the Supreme Court suggested that the ‘incorporated’ rights could be from different sources including ‘International Human Rights Instruments and human rights Constitutional developments in other Jurisdictions. ⁴⁰ However, the Constitutional Court has not yet followed this approach. For example, in Muslim Centre for Justice and Law and Another v Attorney General, ⁴¹ the Constitutional Court endorsed the applicant’s submission that although the Constitution is silent on the right to access justice, that right is ‘saved’ by Article 45. ⁴² Although the applicants argued that Article 45 has the ‘effect of importing rights in International Conventions into the Constitution’, ⁴³ the Constitutional Court did not expressly address that issue. ⁴⁴ It has been argued that since the Supreme Court and the Constitutional Court held that Article 45 has the effect of ‘incorporat[ing] other human rights and freedoms although they may not be specifically mentioned in the Constitution,’ then there is nothing that ‘prevents courts from adopting that approach provided that the right in question is not prohibited in Ugandan law.’ ⁴⁵ As the discussion below illustrates, the author submits that this argument should be reconsidered. However, it could be argued that Article 45 does not apply to the right to freedom from discrimination. This is so because that right is provided for in the Constitution.

Before discussing Article 45 in detail, it is necessary to refer to its brief drafting history. Clause 69 of the Draft Constitution provided that:

The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned, and which are considered to be inherent in a free and democratic society, and intended to secure the freedom and dignity of a human being.

This provision, which would later become Article 45, was not debated in the Constituent Assembly although it was modified. ⁴⁶ However, what is evident is that the last part of the above draft provision was excluded from the final version of Article 45. This exclusion has at least one important implication: for a right to be protected under Article 45, it does not necessarily have to be ‘considered to be inherent in a free and democratic society, and intended to secure the freedom and dignity of a human being.’ Put differently, Article 45 is applicable to any right irrespective of its status and/or purpose. Since the Constituent Assembly did not debate Article 45, the delegates did not explain the nature of rights being referred to in Article 45. This leaves it open to two interpretations. The first interpretation is the one mentioned above and which has been adopted by academics, the Constitutional Court and the Supreme Court. It is to the effect that Article 45 could be invoked to ‘incorporate’ rights in the Constitution. The second interpretation is that Article 45 is meant to refer to other rights which are not included in the Constitution. These include statutory rights and common law (court developed) rights. ⁴⁷ The Supreme Court and the High Court have given examples of common law rights. ⁴⁸ Thus, the mere fact that a right is not mentioned in the Constitution does not mean that it is not a right. While the first interpretation may seem appealing, the second interpretation is compelling and should be followed. This is so because the first interpretation has the effect of indirectly allowing courts to amend the Constitution by ‘reading in’ more rights. This is problematic especially in the light of the fact that there are no criteria for determining which rights should be ‘added’ to the Bill of Rights. Determining the rights to which Article 45 is applicable would not have been a challenge if the last part of Clause 69 (reproduced above) had not been deleted. This is so because, as mentioned above, it provided two criteria for determining the rights to which Article 45 would have been applicable: these rights had to be considered to be inherent in a free and democratic society and intended to secure the freedom and dignity of a human being. Following the second approach would enable Parliament or courts to ‘create’ more rights. However, those rights should not be contrary to the Constitution. The second approach would also ensure that when Parliament or courts ‘create’ rights, they also provide for the grounds on which those rights can be limited. ⁴⁹ Since those statutory or common law rights are not constitutional rights, the limitation clause (Article 43) does or would not apply to them. As mentioned above, Article 43 of the Constitution provides that:

(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

(2) Public interest under this article shall not permit-(a) political persecution; (b) detention without trial; (c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.

It is evident that Article 43 is only applicable to the rights and freedoms ‘prescribed’ in the Bill of Rights. As the Supreme Court held when it referred to Article 43 of the Constitution, ‘our Constitution permits limitations on the enjoyment of the rights guaranteed under it.’ ⁵⁰ These exclude rights ‘read into’ the Bill of Rights on the basis of Article 45.

Another issue that emerges from the Court’s decision is that it does not explain the ground(s) on which the petitioners were discriminated against. As mentioned above, the petitioners argued that the impugned provision was contrary to Article 21(3) because its enforcement had violated their right not to be discriminated against on the basis of ‘social or economic standing as private practitioners.’ ⁵¹ These are two separate grounds. The drafting history of Article 21(3) shows that delegates disagreed on the definition or description of ‘social standing.’ ⁵² This is the case although they seem to have understood its meaning. For example, it was argued that for one to be elected President, he/she had to be of good ‘social standing.’ ⁵³ Social or economic standing were some of the grounds that one delegate found to be ‘very amorphous’ and ‘pregnant with all political ambiguities’ thus ‘likely to bring problems.’ ⁵⁴ One would have expected the Court to explain the differences between the two grounds and motivate which of the two was applicable and why. It could also be that both grounds were relevant. However, this is an issue that the Court does not expound upon.

Had the Court explained how the impugned legislative provision discriminated against the petitioners on of the two grounds, it would not have been necessary to venture into the discussion to the effect that the list of the prohibited grounds of discrimination under Article 21(3) was not exhaustive. It would have resolved that issue based on one of the two grounds or on both grounds. If the fact that the petitioners’ status as private practitioners did not squarely fit into one of the two grounds, nothing would have prevented the court from interpreting those grounds broadly to accommodate the petitioners’ social or economic status as private practitioners. Put differently, although the list of prohibited grounds of discrimination under Article 21(3) is exhaustive, courts can interpret those grounds broadly to cater for different situations provided that this interpretation is not contrary to the drafting history of Article 21(3). For example, the drafting history of the Constitution shows that sexual orientation was expressly excluded from the prohibited grounds of discrimination. ⁵⁵ Interpreting an enumerated ground broadly is not the same thing as increasing the number of prohibited grounds of discrimination. It is just an attempt to give meaning to the ground in question. This approach strengthens the view that the Constitution is a living document which should be interpreted to address emerging challenges. ⁵⁶

As mentioned above, the Court found that section 2(h) of the Stamp Duty (Amendment) Act was unconstitutional because the preferential treatment in question did not fall into one of the exceptions under Article 21(4)(a) and (b). ⁵⁷ The Court also dealt with the issue of whether the limitation imposed by section 2(h) of the Stamp Duty (Amendment) Act was justified as an exception under a combined reading of Articles 21(4)(c) and 43 of the Constitution. ⁵⁸ It has to be recalled that Article 43 is the general limitation clause on the rights in the Bill of Rights. It provides that a right in the Bill of Rights can be limited in the public interest. ⁵⁹ However, it adds, under Article 43(2)(c), that the public interest does not include ‘any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.’ The Court reproduced Article 43 and the Supreme Court’s case law on this provision. It assessed the petitioners’ and respondent’s submissions on whether section 2(h) of the Stamp Duty (Amendment) Act imposed a justifiable limitation under Article 43(2)(c). ⁶⁰ After that assessment, it held that ‘the imposition of a tax called stamp duty on the issue of practicing licenses to professionals in private practice in Uganda is not demonstrably justifiable in a free and democratic society.’ ⁶¹ In other words, it was contrary to Articles 40(1) of the Constitution. However, the Court did not expressly hold that section 2(h) was also contrary to Article 21(4)(c). This is the case although it had promised to deal with the relationship between Article 21(4)(c) and 43(3). ⁶² This should be taken as an oversight on the part of the Court.

That notwithstanding, it raises the issue of whether the Court was justified in invoking Article 43 when dealing with the constitutionality of section 2(h) of the Stamp Duty (Amendment Act). In the author’s opinion, this was not necessary. This is so because unlike other rights in the Bill of Rights which are subject to the general limitation clause (Article 43), the right to freedom from discrimination has its own ‘inbuilt’ limitations under Articles 21(4) and (5). However, these ‘inbuilt’ limitations are only applicable in case Parliament enacts potentially discriminatory legislation. It is not applicable in case where Parliament (other than through enacting legislation) or any other government entity or body or private individual is alleged to have violated the right to freedom from discrimination. In such a case, Article 43 is the applicable limitation. It should be remembered that Article 21 is not ‘subject’ to Article 43.

Under Article 43, if any act or omission is challenged for violating Article 21 of the Constitution, a two-step analysis is required to determine its constitutionality or otherwise. The first step (question) it to determine whether the impugned act or omission can be justified on the ground that it is acceptable and justifiable in a free and democratic society. If the answer to that question is in the affirmative, that is the end of the inquiry. The result is that the act or omission will be declared constitutional. However, if the answer to that question is in the negative, the Court should move on to the second step (question) which is whether the limitation is ‘provided for in the Constitution.’ Properly understood, Article 43(2)(c) provides for alternative grounds on which a right in the Bill of Rights can be limited. The first ground is whether the limitation ‘is acceptable and demonstrably justifiable in a free and democratic society.’ The second ground is whether the limitation is justified on ‘what is provided in this Constitution.’ Any act which can be justified on any of these two grounds is not unconstitutional.

Conclusion

In the light of the above discussion, the only option to expand the list of prohibited grounds of discrimination under Article 21(3) is to amend the Constitution and make this provision open-ended. This could be done in one of two ways. The first one is to add the word(s) ‘includes’ or ‘including’ or ‘such as’ before enumerating the prohibited grounds. Alternatively, it could be amended by adding the words ‘other status’ at the end of the provision. If the first approach is adopted, Article 21(3) would provide that ‘for the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions on grounds including/such as sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.’ If the second option is adopted, Article 21(3) would provide that ‘for the purposes of this article, “discriminate” 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 or other status.’ However, the Constitution could also specify which grounds are expressly excluded from Article 21(3). For example, since Uganda is strongly opposed to same-sex relationships, the amendment could provide that Article 21 should not be interpreted as outlawing discrimination on the ground of sexual orientation. This is especially important in the light of the fact that some human rights activists argue that some grounds such as ‘sex’ and social status’ under Article 21 should be interpreted as prohibiting discrimination on the ground of sexual orientation. For example, the President of Uganda assented to the Anti-Homosexuality Act (2023) in May 2023. Some Ugandans challenged its constitutionality on, amongst other grounds, that it discriminates against people in same-sex relationships on the ground of their sexual orientation. However, the Constitutional Court, in Hon. Fox Odoi & 21 Others v Attorney General & 3 Others, ⁶³ relied on, amongst other sources, the drafting history of Article 21 of the Constitution ⁶⁴ to hold that this history shows that:

[I]t is crystal clear that there was a deliberate omission of sexual orientation as a parameter on the basis of which discrimination could be inferred. Although the issue of sexual orientation had arisen in the Constituent Assembly, it was debated and overwhelmingly rejected by the framers of the Constitution. ⁶⁵

The above discussion shows that it is evident that interpreting ‘sex’ or ‘social status’ broadly to include sexual orientation would be contrary to the drafting history of Article 21 of the Constitution. It would also be contrary to the literal interpretation of the same provision (Article 21).