THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA,

MULENGA, KANYEIHAMBA AND KATUREEBE, JJ.SC.

CONSTITUTIONAL APPEAL NO.2 OF 2004

BETWEEN

1. DIMANCHE SHARON }
2. MOKERA GILPHINE } ::::::::::::::::::::::::: APPELLANTS
3. NANSEREKO LUCK }

AND

MAKERERE UNIVERSITY….……………………. RESPONDENT

{Appeal from the decision of the Constitutional Court (Mukasa Kikonyogo, DCJ,
Mpagi Bahigeine, Berko,Twinomujuni, and Kitumba JJ.A) dated 24 th September
2003 in Constitutional Petition No 1 of 2003.}

JUDGMENT OF ODOKI, CJ

This is an appeal against the decision of the Constitutional Court

dismissing the appellant’s petition challenging the constitutionality of
the respondent’s policy and regulations which required the appellants
and other members of the Seventh Day Adventist Church to attend
scheduled lectures and sit tests and examinations on Saturday which
is their Sabbath contrary to their fundamental beliefs. The central
issue in this appeal is whether the respondent’s policy and
regulations contravened the appellant’s freedom of religion and the
right to education as guaranteed by the Constitution of Uganda.

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Background to the Appeal:

The background to this appeal is as follows: The appellants were

members of the Seventh Day Adventist Church who were at the
material time students at the Makerere University, the respondent.
According to their religious beliefs, the Sabbath Day (Saturday) is a
holy day of rest and worship and therefore no work including
attending lectures and sitting tests and examinations, is permitted.
Since 1997, the respondent had initiated a policy aimed at increasing
access to University education which had led to large increase in
number of students admitted and introduction of a variety of courses
of study conducted both during day and evening as well as external
programmes. Due to this policy, the respondent made regulations
contained in the Freshers Joining Instructions issued to joining
students, in which the students, including the appellants, were
informed that the University programmes might run for seven days a
week. They were also informed that since the University had
students and members of staff from various religions backgrounds,
the University might not meet the interests of a particular group,
especially in the crucial areas of attendance of lectures and
examinations. The students were urged to respond to their
academic work in the academic unit even if it took place in their
respective days of worship.

The appellants found difficulties in attending lectures and sitting tests

and examinations on Sabbath day, and missed some of the
programmes conducted on Saturdays, delaying the completion of
their courses and even in some cases abandoning the courses. The
appellants felt that the policy and regulations of the respondent
interfered with their freedom of religion. They therefore started
holding dialogue and negotiations with the respondent so as to be
granted some accommodation. They requested for rescheduling of
tests and examinations on days other than the Sabbath day or in the
alternative, that special examinations be set for those who miss the
tests or examinations held on Saturdays. They also suggested that
they could be confined on Saturdays while other students were sitting
examinations, so that they could sit the examinations later between

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6.30 and 9.30 p.m.

The respondent was unable to accept this request due to the fact that
it was a secular University which could not cater for particular
religious groups, given its limited physical facilities and huge financial
costs involved. The respondent indicated that it was already
extending accommodation to the appellants by allowing them to
retake the programmes they missed, including examinations when
they were next offered. The appellants were dissatisfied with the
response of the respondent. They brought a petition in the
Constitutional Court under Article 137 of the Constitution, seeking
mainly a declaration that the University’s policies and regulations of
scheduling lectures, mandatory tests and examinations on the
Sabbath Day are inconsistent and are in contravention of Articles 20,
29 (1) (c), 30 and 37 of the Constitution, in respect of the appellants
who profess the Seventh Day Adventist Faith.

In the petition, the appellants alleged that the Makerere University

policies and regulations made under the authority of the University
and Other Tertiary Institutions Act (Act 7 of 2001), which policies and
regulations require students to attend classes, and take mandatory
tests and examinations on any day of the week (including the
Sabbath Day in the case of the appellants who believe in the Seventh
Day Adventist Christian Faith), irrespective of the students’ religious
affiliations are inconsistent with and in contravention of Articles: 20,
29(1) (c), 30 and 37 of the Constitution of Uganda.

They alleged further that Makerere University scheduled the taking of

mandatory examinations for the subject of “Introducing Law” (for

the 1st and 2nd appellants) and “Legal Aspects of Planning” (for

the 3rd appellant) on Saturday, 25th January 2003, which was their
Sabbath Day and on which day they could not by reason of their faith
and beliefs under the Seventh Day Adventist Christian Faith, take

examinations. For the same reason, the 3 rd appellant was forced to

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miss a scheduled examination in the course of “Civil Procedure” in
2002 and therefore could not graduate, and was on this basis
required to repeat the year. By reason of the foregoing, the
appellants complained that they had suffered tremendous hardship
and injustice and were entitled to legal redress.

The appellants contended that Makerere University is a public

institution, and is obliged under Article 20 of the Constitution of
Uganda to respect and uphold their inherent and fundamental rights
and freedoms (which include the religious freedoms) as established
under the Constitution.

They also contended that the respondent’s policy of scheduling

mandatory classes, test and examinations on the Sabbath Day
infringed on their fundamental rights and freedoms to practise their
religion and manifest their Sabbath faith, and the participation in the
rites of their beliefs of the Seventh Day Adventist Christian Faith, as
guaranteed under Article 29(1) (c) of the Constitution.

The appellants further contended that the effect of the policies of

Makerere University of scheduling mandatory classes, tests and
examinations on the Sabbath Day, imposed an unconstitutional
burden on them, by virtue of their faith and undermined their
constitutionally guaranteed right to education under Article 30 of the
Constitution.

Furthermore, it was their contention that the University policy of

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scheduling classes, mandatory tests and examinations on the
Sabbath Day, imposed an unconstitutional burden and hardship on
the appellants’ constitutionally guaranteed right to practise, profess,
maintain and promote their religion in community with others, under
Article 37 of the Constitution of Uganda.

Lastly, the appellants contended that the inflexible conduct and

attitude of the respondent with regard to them had occasioned severe
hardship, loss and detriment to them for which harm they are entitled
to declarations, legal redress and appropriate compensation in
damages.

The appellants prayed for the following declarations:

(1) The Makerere University policies and regulations of scheduling

lectures, mandatory tests and examinations on the Sabbath Day, are
inconsistent with and in contravention of Articles 20, 29(1)(c), 30 and
37 of the Constitution in the case of your Petitioners who practise the
Seventh Day Adventist Christian Faith.

(2) Makerere University violated the petitioners’ constitutionally

guaranteed rights under Articles 20, 29(1)(c), 30 and 37 of the
Constitution.

They also prayed for the award of general and exemplary damages
for the infringement of their Constitutional rights and costs of the
petition. The petition was supported by the affidavits of the three
appellants and three other members of the Seventh Day Adventist
Faith.
The respondent filed an answer to the petition and admitted requiring
students to attend classes, tests and examinations on any day of the
week, but denied that the said requirement was inconsistent with

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Articles 20, 29(1)(c) 30, and 37 of the Constitution. The respondent
further denied that the scheduling of classes, tests and examinations
on Saturday infringed on the fundamental rights of the appellants, nor
did it impose an unconstitutional burden on the appellants. The
respondent stated that it was a secular institution and the petitioners
were admitted subject to the Joining Instructions that the University
programmes might run seven days a week, and since the University
had students and staff from various backgrounds, the University
might not meet the interests of a particular group, particularly in the
crucial areas of attendance of lectures or examinations. The answer
to the petition was supported by several affidavits including, one by
the Vice Chancellor of the University, Professor John Ssebuwufu.

At the hearing of the petition, in the Constitutional Court the two main
issues were framed as follows:

1. Whether the respondent’s regulations are inconsistent with and

in contravention of Articles 20, 29(1) (c), 30 and 37 of the
Constitution of Uganda in the case of the Petitioners.

2. Whether the respondent is entitled to claim a lawful derogation

under Article 43 of the Constitution of Uganda.
The Constitutional Court answered both issues in the negative, and
declined to grant the declarations sought. The appellants were
dissatisfied with that decision and appealed to this Court on the
following six grounds:

“1. That the learned Justices of the Court of

Appeal/Constitutional Court erred in law and fact
when they held that the Respondent’s policies and
regulations in issue are not inconsistent with Articles
20 and 30 of the Constitution and that the
Respondent was justified in requiring the appellants
to sit examinations on their Sabbath.

2. That the learned Justices of the Constitutional

Court/Court of Appeal erred in law and in fact and

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 misdirected themselves on questions of law and fact
when they held that the Respondent’s policy and
regulations that compelled the appellants to sit
exams on their Sabbath or any day of the week
between 7.00 a.m. in the morning and 10.00 p.m. at
night is not inconsistent with and did not violate the
Appellants human rights under Articles 20, 29(1) (c),
30 and 37 of the Constitution.

3. That the learned Justices of the Constitutional

Court erred in law when they held that the Freshers
Joining Instructions of the Respondents notifying the
Appellants on joining the Respondent University that
programmes would run seven days a week and that
the Respondent would not be obliged to respect any
day of worship was sufficient notice that absolved the
Respondent of any further responsibility to uphold
the appellants fundamental tenet of religion in
respect of keeping a Sabbath on Saturdays when
required to sit exams on that day and that the
Appellants should have turned down the offer to join
the Respondent at the beginning.

4. That the learned Justices of the

Constitutional Court erred in law and in fact when
they held that the policy of the Respondent requiring
students to sit exams on the Sabbath irrespective of
their religion, did not give rise to an unconstitutional
burden on the Appellants that violated their freedom
of religion by virtue of a fundamental tenet of the
Adventist Christian Faith.

5. The Appellants shall demonstrate that the learned

Justices of the Constitutional Court severally
misdirected themselves on matters of law, procedure
and fact when they substantially found that there was
no inconsistency in the Appellants petition/case with
Articles 20, 29, 30 and 37 of the Constitution, there
being no violation of any rights therein and the
Respondent therefore did not have the onus of

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 proving justifiable derogation from any rights of the
Appellants.

6. The learned Honourable Justices of the Court of

Appeal failed to properly evaluate the evidence and
therefore erroneously found that accommodating
Seventh Day Adventist Students on the Sabbath Day
issue would impair or adversely affect the fundamental
rights and other freedoms of other persons.”

The Submissions of Counsel:

At the hearing of the appeal, the appellants were represented by Mr.

Christopher Madrama assisted by Mr. Fredrick Sentomero and Mr.
Nsubuga Ssempebwa. The Respondent was represented by Mr.
Dennis Wamala.

Mr. Madrama for the appellants, argued grounds 2 and 4 together,

and rest of the grounds separately. He argued ground 5 first, which
dealt with the onus of proving justifiable derogation under Article 43 of
the Constitution. I propose to deal with grounds 1,2,3,4 and 6first
and handle ground 5 last.

In his submissions before us on ground 5, Mr. Madrama, learned

counsel for the appellants, contended that the Constitutional Court
erred in holding that the respondent did not have the burden of
proving that the infringement of the appellants’ rights was
demonstrably justified in a free and democratic society.

Counsel argued that once the appellants had proved infringement of

their rights, the burden shifted on to the respondent to establish a
lawful derogation. He further submitted that the burden of proof is
higher than in an ordinary civil case. He relied on the decision of R
V Big M Drug Mart Ltd (1985) 18 DLR321, R V Oakes (1987) LRC
(Const.) 477, and Charles Onyango Obbo & Another vs Attorney

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General, Const. App No 2 of 2002 SC.

Mr. Wamala, for the respondent, submitted that Article 43 provides a

limitation on rights and freedoms based on public interest. He
contended that their observance of the Sabbath Day would prejudice
the public interest. He cited the case of R V Oakes (supra) and
Charles Onyango Obbo (supra) as setting out the criteria for
determining what limitations are reasonably justifiable in a free and
democratic society.
Learned counsel for the respondent also submitted that the
respondent had provided sufficient accommodation for the appellants,
relying on the affidavit of Prof. Ssebuwufu, Vice Chancellor of the
respondent. He cited the decisions in Commission Scolaire
Regionale De Chamblay vs Bervegevin (1994) 2 SCR 529 and
Central Okanagen Scarel District No 23 vs Renand (1992) 2 SCR
970 in support of his submissions.

In his submissions on ground one, Mr. Madrama, argued that the

Constitutional Court erred in holding that the respondent’s actions did
not contravene the Constitution. He contended that the respondent
failed in its constitutional duty under Article 20 of the Constitution to
respect the appellants’ right to freedom of religion by upholding their
right to rest on the Sabbath. Learned counsel criticized the
respondent’s policy of requiring students to postpone examinations or
forego their courses as an infringement of their right to freedom of
religion. According to learned counsel, their right to freedom of
worship and to manifest their religion, was violated.

Referring to the letter from the Vice Chancellor to the Seventh Day

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Adventist Church, Mr. Madrama submitted that while it is correct to
take into account the policy of the respondent, it was necessary to
consider both its purpose and effect. It was his contention that even
if there is a valid purpose, if the effect is adverse, the infringement
would be held to be unconstitutional. Learned counsel cited the
decisions in the Queen, vs Big M Drug Mart Ltd (others
Intervening (1986) LRC (Const.) 332 and Re Chikweche (1995) 2
LRC 93 and Sherbet vs Verner 374 US 398, in support of his
submission.

In respect of ground 3, Mr. Madrama argued that the Freshers Joining

Instructions never amounted to a waiver or estoppel. He contended
that there is no estoppel against a fundamental right and relied on the
decision in Tellis and Others vs Bombay Municipal Corporation
and Others (1987) LRC 35. It was his submission that in order for
an action to amount to a waiver, the waiver must be as free and
voluntary as possible.

On grounds 2 and 4, learned counsel for the appellants submitted

that the Justices of the Constitutional Court erred in holding that
giving the appellants an accommodation on Saturday would impose
unbearable burden on the respondent. It was his contention that
there was no evidence to support this finding. He argued that there
were other options like sitting for examination in the evening of
Saturday which was not considered by the Constitutional Court.

Finally, in arguing ground 6, Mr. Madrama submitted that the

Constitutional Court failed to evaluate the evidence correctly. He
contended that there was no evidence to support the finding that
giving the appellants an accommodation on Saturdays like sitting
examinations in the evening would impose an unbearable burden on

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the respondent.
In reply, Mr. Wamala for the respondent submitted that the six
grounds of appeal could be summarized under the two issues I have
already stated above. Learned counsel pointed out that the
appellants had narrowed down their complaint in the grounds of
appeal to attending examinations, and have left out attendance of
weekly tests which had been included in the petition.

Mr. Wamala’s first submission was that not every infringement of a

human right constitutes a violation of the Constitution. It was his
contention that the test is whether there is substantial violation of the
petitioners’ right. He relied on the decision in Syndicat de
Lenseignement de Champlain CSR De Chambly C Bergevia
(1994) 2 RCS 526. He submitted that the appellants did not adduce
any evidence to show that the alleged violation was substantial. He
referred to the affidavit of Prof. Ssebuwufu where he stated that
examinations were held within two weeks and each examination was
held for three hours and contended that if the appellants are required
to attend examinations for only three hours, the infringement is not
substantial.

Secondly, Mr. Wamala submitted that the nature of the

accommodation the respondent extended to the appellants was to
retake the examinations after one year. He contended that the
appellants had to prove that the infringement or limitation constituted
an unconstitutional burden against them. The appellants had also to
show the sincerity of their belief. Counsel relied on the Syndicat
Case (supra). Mr. Wamala referred to the affidavit of Ms.
Nakabango which explained the exceptions to the Sabbath rule. He

11
also referred to Exodus, Chap. 20:8 and submitted that if the
appellants are sincere, why did they want to be confined, instead of
praying. Counsel submitted that when considering sincerity, one
should not look at the validity but the sincerity of their claim.

Thirdly, Mr. Wamala contended that by signing the Freshers’

Instructions, the appellants waived their Constitutional rights and
cannot be seen to complain now. He cited the Syndicat Case
(supra) which lays down the tests to be applied in determining the
question of waiver, which he conceded are not settled.

The fourth argument was that Article 29(1) (c) is not absolute and is
limited by Article 43 which provides that no person should prejudice
the rights of others or the public interest. Mr. Wamala relied on the
affidavits of Prof. Ssebuwufu and the President of the Students’ Guild
which demonstrated the likely prejudice to other students if the
demands of the appellants were granted.

He also relied on the National Objectives and Directive Principles of

State Policy, in the Constitution, Objective No 18 (2), which states
that the State should give every person opportunity to attain the
highest standards of education, and the University and Tertiary
Institutions Act which has the objective of affording all students the
right to higher education.

Before I consider these submissions I propose to outline the relevant

Constitutional provisions, some general principles of Constitutional
interpretation, the importance of Sabbath to the Seventh Day
Adventist Faith, and the respondent’s policy and regulations.

Relevant Constitutional Provisions:

Freedom of religion is guaranteed by Article 29(1) (c) of the

Constitution which provides,

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 “(1) Every person shall have the right to –

(c) freedom to practice any religion and

Manifest such practice which shall include
the right to belong to and participate in the
practices of any religious body or
organization in a manner consistent with
this Constitution.”

This right is reinforced by Article 37 which provides,

“Every person has a right as applicable to belong to,

enjoy, practice, profess, maintain and promote any
culture, cultural institution, language, tradition, creed
or religion in community with others.”

The Constitution also in Article 7 which states, “Uganda shall not

adopt a state religion.”

The right to education is provided for under Article 30, which states
that, “All persons have a right to education.”

The Constitution provides in Article 20 that fundamental rights and

freedoms are inherent and not granted by the State and must be
respected and promoted by all organs of the State and all persons.
Article 20 states as follows:

“(1) Fundamental rights and freedoms of the

individual are inherent and not granted by the
State.

(2) The rights and freedoms of the individual and groups

enshrines in this Constitution shall be respected, upheld and
promoted by all organs and agencies of the Government, and by

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all persons.”

The Constitution provides for a general limitation on fundamental

rights and freedoms under Article 43 in these terms:

“(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 freedom prescribed by this
chapter beyond what is acceptable in a
free and democratic society, or what is
provided in this Constitution.”

Under Article 2, the Constitution is the Supreme Law of Uganda and

“if any other law or custom is inconsistent with any of its
provisions, the Constitution shall prevail and that other law or
custom shall, to the extent of the inconsistency, be void.”

Under Article 50 of the Constitution any person who claims that a

fundamental right or freedom guaranteed under the Constitution has
been infringed or threatened, is entitled to apply to a competent Court
for redress which may include compensation. Any person or
organization may bring an action against the violation of another
person’s or groups human rights.

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Any person has a right to petition the Constitution Court for
determination of any question relating to the interpretation of the
Constitution under Article 137(3) which provides,

“(3) A person who alleges that –

(a) an Act of Parliament or any other law or

anything in or done under the authority of
any law, or

(b) any act or omission by any person or

authority

is inconsistent with or in contravention of a provision

of this Constitution may petition the Constitutional
Court for a declaration to that effect, and for redress
where appropriate.”

It is a well established principle of constitutional interpretation that a

broad and liberal spirit is required for its interpretation. It is
essential that a constitution is not interpreted in a narrow and
legalistic way but generously, and purposively, so as to give effect to
its spirit, and this is particularly true of those provisions which are
concerned with the protection of constitutional rights. See R v. Big
M. Drug Mart Ltd. (1985) 18 DLR 321.

There are also ample authorities for the proposition that a constitution
should be interpreted as an integrated whole so that no single
provision of the Constitution is segregated from others and
considered alone, but that all provisions bearing upon a particular
subject are brought into view and to be interpreted so as to achieve

15
the greater purpose of the constitution. See South Dokata V. North
Caroline 192 US 268, 1940 448 at 465.

Importance of Sabbath to the Seventh Day Adventist Faith:

According to the faith of the Seventh Day Adventist Christians, the

observance of the Sabbath is one of the Ten Commandments. This
is spelt out in the Holy Bible in the Book of Exodus, Chapter 20
verses 8-11 as follows:

“Remember the Sabbath Day by keeping it holy. Six

days you shall labour and do all your work but the
Seventh Day is a Sabbath to the Lord your God. On
it you shall not do any work, neither you, nor your
son or daughter nor your man-servant nor your main-
servant nor your animals nor the alien within your
gates. For in six days the Lord made the heavens
and the earth, the sea, and all that is in them, but he
rested on the seventh day. Therefore the Lord
blessed the Sabbath Day and made it holy.”

According to the affidavit sworn by Dr. John B. Kakembo, the

Executive Secretary to the Seventh Day Adventist Church, Uganda
Union, the Sabbath observance is one of fundamental beliefs of the
Seventh Day Adventist Church. In a text book entitled, What the
Seventh Day Adventist Believe where the teaching of the Sabbath
is contained in Chapter 19 at pages 245-266, it is stated that the
Sabbath is central to their worship. It is a memorial of creation
because God rested and was refreshed on the Seventh Day
(Exodus:31:17) God also blessed the Sabbath and sanctified it.

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With regard to observance of the Sabbath, the book states at page
263,
“To remember the Sabbath Day, to keep it holy
(Ex.20:8). We must think of the Sabbath throughout
the week and make the preparations necessary to
observe it in a manner pleasing to God. We should
be careful not to so exhaust our energies during the
week that we cannot engage in His Service on the
Sabbath. Because the Sabbath is a day of special
communion with God in which we are invited to
joyously celebrate His gracious activities in creation
and redemption, it is important that we avoid
anything that tends to diminish its sacred
atmosphere. The Bible specifies that on the Sabbath
we should cease our secular work (Ex.20:18),
avoiding all work done to earn a living and all
business transactions (Neh.13:15-22).”

The Sabbath begins at sunset on Friday evening and ends at sunset

Saturday evening (See Gen.1:5) Scripture calls the day before
Sabbath (Friday) – the preparation day – (Mark; 15:42) – a day to
prepare for the Sabbath so that nothing will spoil its sacredness. On
this day those who make the family’s meals should prepare food for
the Sabbath so that during its sacred hours they also rest from their
labours (See Ex 16:23; Num 11:18).

Twinomujuni JA questioned the sincerity of the claim by the

appellants that attending lectures or examinations on the Sabbath
was not sincere, in view of Jesus teachings contained in Mark 3:23
where he said that the Sabbath was made for man and not man for
Sabbath, and Mathew 12:1-3 where Jesus said, “It is lawful to do
good on the Sabbath.” However, the majority of the Justices of
the Constitutional Court did not question the appellants’ sincerity, and

17
I agree with them because religion is a matter of faith.

In Re Chickeche (1995) 2 LRC 93, it was held by the Supreme Court

of Zimbabwe that freedom of conscience and religion had to be
broadly construed to extend to conscientiously held beliefs whether
grounded in religion or secular morality. The wearing of dreadlocks
was symbolic expression of the beliefs of Rastafarianism which had
the status of a religion in the wider and non-technical sense, or in any
event was a system founded on personal morality. The Court was
not concerned with validity or attraction of Rastafarian beliefs, but
with the sincerity with which they were held, which in the case of the
applicant was not in doubt. The appellants’ manifestation of his
religion by the wearing of dreadlocks fell within the protection of
freedom of conscience afforded by S.19 (1) of the Constitution.

Therefore, the refusal by the Court to permit the applicant to take the
oath of loyalty and of office as a preliminary to registration as a legal
practitioner on the ground of his appearance had placed the applicant
in a dilemma. He was forced to choose between adherence to the
precepts of his religion which meant foregoing the right to practise the
profession he had chosen, or satisfying an important edict of his
religion in order to be able to practise and it followed that the judges
ruling violated his constitutional right to freedom of religion under
S.19 (1) (see R V M Drug Mart Ltd (1986) LRC Const. 332 at p 359.

The Court cited the dictum of Dickson CJ in the Canadian Case of RV

Big M Drug Mart Ltd (supra) at p.359, in which he stated,

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 “The essence of the concept of freedom of religion is
the right to entertain such religious beliefs as a
person chooses, the right to declare religious beliefs
openly and without fear of hindrance or refusal.”

Later at p.366 he added,

“Every individual is free to hold .….. whatever

religions beliefs by his or her conscience dictates
provided inter alia, only such manifestations do not
injure his or her neighbours or their parallel rights to
hold and manifest beliefs on opinions of their own.”

Dr J N Pandy writing on the effect of Article 25 (1) of the Constitution

of India in his book entitled, The Constitution of India, p.197 states:

“Religion is a matter of faith with individuals or

communities and it is not necessarily theistic. A
religion has its basis in a system of beliefs as
conclusive to their spiritual well being but will not be
correct to say that religion is nothing else but a
doctrine of belief. A religion may only lay down a
code of ethical rules for its followers to accept, it
might prescribe rituals and observations, ceremonies
and modes of worship which are regarded as integral
parts of religion, and those forms and observances
might extend even to matters of food and dress.
Religion is thus essentially a matter of personal faith
and belief. Every person has the right not only to
entertain such religious belief and ideas as may be
approved by his judgment or conscience but also to
exhibit his belief and ideas by such overt acts by his
religion. (cited in Re Chikweche (supra) Page 99 –
100).

Respondents’ Policy and Regulations:

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Each academic year the respondent issues to students admitted to
take various courses, a document known as “Freshers Joining
Instructions.” In the 1999/2000 and 2000/2001 academic years,
the appellants received a similar document in which it was stated in
bold letters:

“Students are informed that University Programmes

may run seven days a week. Since the University
has students and members of staff from various
backgrounds the University may not meet the
interests of a particular group, particularly in the
crucial areas of attendance of lectures and/or
examinations. You are therefore urged to
respondent to the academic work in your Academic
Unit even if it takes place on the respective days of
worship.”

The background to policy and regulations of the respondent were

explained in a letter dated July 12, 2000 addressed to Dr John B
Kakembo, the Executive Secretary of the Seventh Day Adventist
Church, Uganda Union, by Prof. John Ssebuwufu, the then Vice
Chancellor of the respondent University. The body of the letter
reads:

“RE: SEVENTH DAY ADVENTIST STUDENTS AND

ACADEMIC ACTIVITIES ON SATURDAYS

Thank you very much for your dated June 18, 2002 regarding
scheduling of examinations on Saturday.

Prior to 1997, the University authorities used to try very hard to

ensure that examinations were not scheduled at times, or on
days of worship for the various religions denominations. Even
then, in a few academic units, for example, in the faculty of
Medicine, tests and some clinicals had to be conducted on
Saturdays and Sundays purely because of the nature of such

20
academic programmes.

The University has since 1997 witnessed many positive

developments including a big increase in the number of
students admitted and the introduction on a wide variety of
courses and programmes of study. The University now runs
not only day classes but also afternoon, external and evening
classes.

With such a complex system, many practice, norms and patterns

of the University life have had to change to suit the new
circumstances and realities in which the University has to
operate. The University Senate and Management have,
therefore, agreed that whilst individual religious beliefs have to
be respected, academic activities can be scheduled on any or all
the seven days of the week. The University Senate and
Management have also agreed that academic activities can be
schedule from 7.00 a.m. to 10.00 p.m. on any day.

If for religious or any other reason a student is unable to study

or sit for examinations, he/she is free to request to withdraw
from the University or to retake a particular course when such a
course would be offered again. Under the Semester which the
University now operates, special or supplementary examinations
are not administered. In the circumstances, any Seventh Day
Adventist Student who may not have sat for a particular
examination, may apply to the respective Dean/Director to retake
the course for such examination when it will be next offered
again.

On its part, the University Management will continue to respect

individual religious beliefs and the freedom of worship but
where there are constraints, it is hoped that students and the
general public will understand and support the University so
that in the end “ We Build for the Future.”

In his affidavit in support of the answer to the petition, Prof.

Ssebuwufu explained the objectives of the policy and regulations,
their effect, the efforts to accommodate the demands of the

21
appellants, and the reasons why the appellants could not be
exempted from the academic programmes conducted on the
Sabbath. He explained that the policy was adopted taking into
account the secular nature of the University with diverse religious
backgrounds and with an attempt to make the University education
accessible to a large student population. The policy had been
communicated to the students including the petitioners, at the time of
admission.

Prof. Ssebuwufu also explained that the effect of the policy was to
increase the number of government sponsored students, provide
education to a large number of evening, external or private students
who could not attend day programmes due to their schedule of work.
As a result of the policy the number of courses offered by the
University has increased, and the University had been able to
generate more revenue from private students to improve buildings
and infrastructure to accommodate more students, and to recruit and
retain more skilled staff.

The Vice Chancellor explained further in his affidavit the scope of

accommodation extended to the appellants which included-

 change of courses and subjects in light of provided

timetables;

 retaking of courses or examinations when unable to sit for

examinations on weekends;

 attending lectures or tutorials on other days with students of

different programmes held.

22
Prof. Ssebuwufu stated that the University could not offer special
examinations for those unable to attend examinations on particular
days due to religious considerations or other reasons because such a
practice would create a variance in academic standards and would
also increase the cost of education. It was also not possible to
confine Seventh Day Adventist Students in a particular place on
Saturdays and offer them examinations after Sabbath as this would
be construed as sectarianism, impractical and unconstitutional.
Other religious groups could also demand to be similarly treated.

The difficulties which would be experienced by the University if it

agreed to provide the additional accommodation requested were
stated by Prof. Ssebuwufu to include:

 Reduction in the number of students admitted.

 Reduction in the courses offered for evening programmes.

 Prolonging duration of certain courses leading to increase in

cost of education.

 Inability to employ adequate number of qualified lecturers

who can only teach on weekends.

 Inability to meet demands by staff for high wages which are

subsidized by resources generated by fees from private
students.

 Substantial reduction in revenue leading to decrease in

student intake.

 University would be compelled to reschedule lectures, tests

23
 and examinations in respect of various religious groups like
Catholics, Anglicans, Bahais, Hindus, Moonies, etc.

Constitutionality of the Respondent’s Policies and Regulations:

The appellants complained that the Justices of the Constitutional

Court erred in holding that the respondent’s policies and regulations
in issue were not inconsistent with articles 20 and 30 of the
Constitution and the respond was justified in requiring the appellants
to sit examinations on their Sabbath. They also complained that the
Justices of the Constitutional Court misdirected themselves when
they found that the respondent’s policy and regulations were not
inconsistent with and did not violate the appellant’s human rights
under Articles 20, 29(1) (c) 30 and 37 of the Constitution.

It will be recalled that Article 20 imposes a duty on all organs and

agencies of the government and all persons to respect uphold and
promote the fundamental rights and freedoms of the individual and
groups enshrined in the Constitution. Article 30 guarantees the right
of education to all persons.

In dealing with the issue of religious freedom, Mukasa Kikonyogo

DCJ said,

“It is correct as observed by counsel for the

petitioners that the justification for the respondents is
a public and secular institution and as such it has no
duty to accommodate some beliefs based on
religious tenements. It is no where stated in the
respondents policy and regulations that the petitioner
should give up their religious convictions and
became secular. In my view, the respondents’ policy
is not inconsistent with Articles 20 and 30 of the
Constitution. The case of Sherbert vs Verner (supra)

24
 relied on by counsel is not relevant to this petition.”

The learned Deputy Chief Justice then held that the appellants were
free to participate or not participate in the respondent’s educational
programmes held on Sabbath, and were not prevented from believing
in and practising their faith. Therefore the said policy did not force
the appellants to go against their conscience and did not violate their
religious freedom.

The learned Deputy Chief Justice then concluded,

“The purpose and effect of the policy as clearly

indicated in the affidavit evidence in support of the
answer to the petition was inter alia to improve
quality of education, enhance accessibility to
education by more people and reduce the cost of
education. It was not discriminatory as it was
suggested by the petitioners. It was applicable to all
the students many of whom had similar religious
beliefs and convictions but accepted the programme.
In this observation, I am fortified by affidavit evidence
deponed to on behalf of the respondent by Professor
Ssebuwufu in paragraph 3 (supra). There is no
dilemma or Constitutional burden facing the
petitioners as submitted by their learned counsel.
They are not required to give up or forego their
cardinal tenet of their religious belief that they must
not work on Sabbath.”
Regarding the question of the right to education, the learned Deputy
Chief Justice referred to the accommodation offered by the
respondent and other options open to the appellants:

“The respondent even gave them alternatives of

taking the educational programmes when fixed on
other days than Sabbath. They had that option but

25
 not to give up their religious beliefs. They had so
many choices including transferring to other
Universities or Institutions. No evidence of reprisal
is adduced to prove that allegation and in my view it
is not correct as contended by Mr. Kakembo Katende
that the petitioners are suffering because of their firm
religious conviction. If anything other students or
groups may be exercising similar problems. The
respondent has students and staff from various
religious background and it is admitted it may not
meet the interest of a particular group, particularly in
the critical areas of attendance of lectures and
examinations.”

Mpagi-Bahigeine JA, referred to the University and other Tertiary

Institutions Act, No 7 of 2001, under which the policy and regulations
were made and said,

“It is material to note that the respondent’s policies

and regulations are made under the University and
other Tertiary Institutions Act No 7 of 2001 with a
purpose to provide for the establishment of the
National Council for Higher education, its functions
and administration and to streamline the
establishment, administration and standards of
Universities and other Institutions of Higher
Education in Uganda; and to provide for other related
matters.

The purpose and effect of the Act and regulations in

as far as this petition is concerned are to be
construed against the background of Article 7 of the
Constitution which proclaims “Uganda shall not
adopt a state religion” This Article therefore frees
Ugandans from official dogma and leaves them to
worship anything or nothing within Article 20, 29(11)
(c) and 37. These stipulated that religious freedom
has to be practiced “in a manner consistent with this
Constitution” and in community with others. “It thus

26
 gives religious equality but not immunity from
observance of the law. Religious freedom is,
therefore, not an absolute human rights.”

The learned Justice then concluded,

“Uganda therefore being a secular state, means that

the respondent acting under Act No 7 of 2001 and the
regulations thereunder is not circumscribed by the
variety of religions beliefs obtaining in the institution
as deponed by the Vice Chancellor in his affidavit
dated 7th May 2003.”

Berko JA, emphasised the intolerable burden that would be imposed

on the respondent if it was to accede to the appellants demands:

“In my view to accede to the prayers of the

petitioners and make the declarations they are
seeking would place an intolerable burden on the
University in perpetuity and make the smooth
administration of the institution difficult. Therefore
there is no way the University would know the
number of interest groups that would make similar
demands for special treatment.”

After quoting Article 43 of the Constitution, Twinomujuni JA observed

that the appellants had to respect the rights of others in the
enjoyment of their rights:

"While the petitioners are free to enjoy their rights

and freedoms they must respect the rights and
freedoms of others who do not practice the same
religion or those of the University. The regulations in
issue are non-discriminatory. They equally apply to
all the people and necessary in order to run an

27
 institution as Makerere University. They do not
however, affect anyone who does not voluntarily
choose to join the University. If I admit you to live in
my house under specified conditions and you accept
to do so, you will be held to be out of order if you
subsequently attempt to replace the conditions with
those which suit your own peculiarities. For these
reasons I would hold that Makerere University
regulations do not in any way violate or contravene
the petitioners' constitutional rights of religion and
education."

On her part Kitumba JA, underscored the fact that the appellants had
a choice to join or not join the respondent and that the respondent’s
policy was intended and did secure accessible and high quality higher
education. She observed:

"I would like to observe that the Respondent

University is not the only University in the country.
The petitioners freely choose to go to Makerere
University and have therefore to abide by the
conditions. The right to education provided by
Article 30 of the Constitution does not in any way
mean the right to attend the Respondent University at
the students' own terms.

She held that the respondent's regulations did not contravene Article
20 of the Constitution because the objects of the Act as set out in
Section 3 are stated as follows:

"The object of this Act are to establish and develop a

system governing institutions of higher education in
order to equate qualifications of the same similar
courses offered by different institutions of higher
education while at the same time respecting the
autonomy and academic freedom of the institutions
and to widen the accessibility of high quality

28
 standard institutions to students wishing to pursue
higher education courses. (Emphasis hers).

The learned Justice of the Constitutional Court then concluded that

the respondent's policy was consistent with the Constitution. She
stated,

"In my view the evidence adduced especially in the

affidavit of Professor John Ssebuwufu shows that the
respondent's policy is in strict compliance with the
Constitution. In his affidavit dated 7 th May 2003, he
avers, inter alia, that the practice of scheduling
lectures, tests and examinations on any day of the
week from 7.00 a.m. to 10.00 p.m. has yielded the
following advantages:

(a) University education has been made accessible

to large number of students including evening
students;

(b) there has been an increase of the intake of

privately sponsored students;

(c) the variety of courses offered has increased;

(d) the University has generated more revenue; and

(e) the cost of University education for students has

become cheaper."

I have quoted extensively from the judgments of the Justices of the

Constitutional Court to demonstrate how each of them resolved the
issue whether the respondent's policies and regulations, infringed the
appellant’s rights to education and freedom of religion. They all
arrived at a common finding that the respondent's policies and

29
regulations were neither inconsistent with the Constitution nor
infringed the appellant’s rights. I am in general agreement with their
reasoning and conclusion.

From the evidence of Professor John Ssebuwufu contained in his

various affidavits, it is clear to me that the respondent was alive to its
duty under Article 20 of the Constitution to respect the rights and
freedoms of all its students, including those of the appellants. Its
policies in expanding and academic programmes, and increasing
students' intake were aimed at increasing access to University
education in accordance with Article 30 of the Constitution. The
appellants were not deliberately or discriminatorily denied the right to
education or their freedom to religion. Indeed, the respondent took
measures to accommodate the appellants special concerns by
allowing them to retake examinations, which they had missed on
account of their being held on Sabbath day. Consequently, the
adverse effect on the rights and freedoms of the appellants was
reduced. The appellants' rights and freedoms were affected in some
measure by these policies and regulations, in order to protect the
interests of others or the public interest in accordance with Article 43
of the Constitution.

It was submitted for the respondent that the interference with the
appellants' rights was not substantial and therefore could not be said
to have infringed their rights. Counsel relied on the case Syndicate
Northcrest vs. Amstem (2004) 2 SCR 551 where it was stated at
page 554,

"Freedom of religion is triggered when a claimant

demonstrates that he or she sincerely believes in a
practice or belief that has a nexus with religion.
Once religious freedom is triggered a court must
ascertain whether there has been non-substantial
interference with the exercise of the implicated right
so as to constitute an infringement of freedom of
religion under the Quebec (or the Canadian) Charter.

30
 However, even if the claimant successfully
demonstrates non-trivial interference, religious
conduct, which would potentially cause harm to or
interference with the rights of others, would not
automatically be protected. The ultimate protection
of any particular charter right must be measured in
relation to other rights and with a view to underlying
context in which the apparent conflict exists."

In the present case the Constitutional Court found that interference

with the appellants' right to education or the freedom of religion was
non-substantial especially as the respondent accorded to them some
measurable accommodation to enable them realize both their right to
education as well as religious freedom. In my view the Constitutional
Court came to the correct conclusion that the policy and regulations
of the respondent did not violate the rights and freedom of the
appellants, nor did they impose an unconstitutional burden on them.
Accordingly, grounds 1, 2 and 4 should fail.

Duty to Accommodate:

It was submitted by counsel for the appellants in respect of ground 6

that the Justices of the Constitutional Court failed to evaluate the
evidence correctly leading them to conclude that giving appellants
more accommodation would impose unbearable burden on the
respondent. Counsel argued that there was no evidence to support
such a finding.

The principles relating to the duty to accommodate and the degree of

accommodation were expounded in the cases of Syndicat
‘Enseignement de Champlain vs. CSR Dechambly C Bergevin
(1994) RCS 52, and Central Alberta Dairy Pool vs. Alberta
(Human Rights Commission) 1990 2 SCR 489.

31
In Syndicate ‘Enseignement de Champlain case (Supra) the
Supreme Court of Canada was dealing with a case of religious
discrimination of employees. The court observed that reasonable
accommodation was an integral part of equality. The court said
further that historically the duty to accommodate developed as a
means of limiting the liability of an employer who was found to have
discriminated by the bona fide adoption of a work rule without any
intention to discriminate. By providing reasonable accommodation to
the affected workers, the employer could justify the adverse effect
discrimination and thereby avoid liability for the unintended
consequence of the rules of employment.

The extent of the duty to accommodate in cases of adverse effect

discrimination was stated in the Syndicat Case as follows:

"The duty in a case of adverse discrimination on the

basis of religion or creed is to take reasonable steps
to accommodate the complainant short of undue
hardship; in other words, to take such steps as may
be reasonable without undue interference in the
operation of the employers business and without
undue expense to the employer."

The factors to be considered in determining what constitutes

reasonable accommodation were set out in the Central Albert Dairy
Pool Case (Supra) at pages 520-21. Where it was said,
"I do not find it necessary to provide a
comprehensive definition of what constitutes undue
hardship but I believe it may be helpful to list some of
the factors that may be relevant to such appraisal. I

32
 begin by adopting those identified by the Board of
Inquiry. In the case at bar - financial cost, disruption
of a collective agreement, problems of morale of
other employees, interchangeability of work force and
facilities. The size of the employers operation may
influence the assessment of whether a given financial
cost is undue or the ease with which the work force
and facilities can be adapted to the circumstances.
Where safety is at issue both the magnitude of the
risk and the identity of those who bear it are relevant
considerations. This list is not intended to be
exhaustive and the results which will obtain from a
balancing of these factors against the right of the
employee to be free from discrimination will
necessarily vary from case to case."

The Court went on to observe that with regard to the factor of the
morale of other employees, it requires a consideration in the effect of
the reasonable accommodation on other employees. These factors
are not engraved in stone. They should be applied with common
sense and flexibility in the context of the factual situations presented
in each case. It should be remembered that the duty to
accommodate is limited by the words "reasonable" and "short of
undue hardship". Those words do not constitute independent
criteria. Rather they are alternate methods of expressing the same
concept.

Although there was no allegation of discrimination in this case I am

satisfied that the principles I have elucidated above apply with equal
force to the present appeal. I find that the Justices of the
Constitutional Court correctly evaluated the evidence relating to the
issue of accommodation and came to the right conclusion that giving
the appellants more accommodation would impose unbearable
burden and hardship on the respondent. I agree with the

33
Constitutional Court that the respondent offered the appellants
reasonable accommodation and that granting the appellants the extra
accommodation requested would cause undue hardship and expense
to the respondent as well as seriously affect the ability of the
respondent to provide accessible, affordable , quality higher
education to a diverse and multi-religious community. I therefore find
no merit in ground 6, which should fail.

Waiver of Rights or Estoppel:

It was argued by counsel for the appellants that the appellants did not
waive their rights because there is no estopped against human rights.
Learned Counsel relied on the case of Tellis & Others Vs. Mombay
Muncipal Corp & Others (1987) LRC (Const) 351, where the
Supreme Court of India held that there is no estoppel against the
Constitution. The Court observed that in petitions which were clearly
maintainable under Article 32 of the Constitution the petitioners were
not estoppel from raising their fundamental rights under the
Constitution which was not only the paramount law of the land but the
source and sustenance of all laws. The Constitution not only
protected individuals, but also served the public interest. No
individual could barter away the freedom conferred upon him by the
Constitution and so any concession made in the proceedings
(whether under a mistake of law or otherwise that he does not
possess or have not injured any fundamental right) could not create
an estoppel in those or any subsequent proceedings, nor could
fundamental rights conferred by the Constitution be waived.

The Supreme Court further held that notwithstanding the fact that the
petitioners conceded in the Bombay High Court that they had no

34
fundamental right to construct hutments on pavements and they will

not object to their demolition after the 15th October 1981, they were
entitled to assert that any such action on the part of the public
authorities will be in violation of their fundamental right. How far the
assertion regarding the existence and scope of the right claimed by
the petitioners was well founded was another matter.

In Syndicat North Crest vs Amselem (supra), the Supreme Court of

Canada observed that “whether one can waive a constitutional
right like freedom of religion is a question that is not free from
doubt:” The Court stated that in order to amount to a waiver if any,
the waiver must be unambiguous, the waiver must be voluntarily and
freely expressed with a true understanding of the true consequences
and effects; and it must be explicit, stated in express, specific and
clear terms.
In the present case, it is not disputed that the appellants were made
aware of the respondents’ policy and regulations. Even though, the
appellants voluntarily accepted the terms containing in the Joining
Instructions, they cannot be said to have waived their rights to
education or freedom of religion. Nevertheless their rights were not
infringed in contravention of the provisions of the Constitution.
Ground 3 should therefore fail.

Establishing Justifiable Derogation/Limitation:

Ground 5 is vague, argumentative and repetitive of foregoing grounds

of appeal and generally offends the rules for drawing up grounds of

35
appeal. It seems to me that the complaint here is in the manner in
which the Constitutional Court considered the derogation or general
limitation clause in the Constitution under Article 43.

In my view, learned counsel for the appellants’ should have argued

ground five after arguing the rest of the grounds because they
addressed the first issue which was framed during the hearing of the
petition namely, whether the respondent’s policy and regulations are
inconsistent with and in contravention of Articles 20, 29, 29(1) (c) 30
and 37 of the Constitution in the case of the petitioners.

In determining whether an action or law infringes a fundamental right

or freedom, it is necessary to consider whether that action or law
infringes upon or violates that constitutionally protected right or
freedom. If the action or law is found not to infringe upon that right
or freedom, then that action or law is consistent with and does not
contravene the provisions of the Constitution guaranteeing that right
or freedom.

However, if the action or law prima facie infringes upon or

substantially interferes with a fundamental right or freedom, then the
Court must consider whether the action or law can be justified or
upheld upon the basis of the general limitation or derogation provision
under Article 43 of the Constitution.

In Ground 5, the appellants in effect argue that the Constitutional

Court erred in holding that the respondent did not have the onus of
proving justifiable derogation from their fundamental rights under
Article 43 of the Constitution. Having found that respondent’s
policies and regulations were not inconsistent with Articles 20, 29(1)
(c), 30, and 37 of the Constitution, the Justices of the Constitutional
Court held that the respondent did not have to claim a lawful

36
derogation under Article 43 of the Constitution. The learned Justices
did not anywhere in their judgment misdirect themselves that the
respondent did not bear the burden of establishing lawful derogation.
Indeed the Justices of the Constitutional Court declined to consider
the second issue, in view of their findings on the first issue.

The principles for establishing justifiable derogation or limitation on a

fundamental right or freedom have been established in several
Canadian and Ugandan cases. Notably of these are R.V. Big M.

Drug Mart Ltd (1985) 18 DLR (4th Edn) 32 R.V. Jakes (1986) 26

DLR (4th Edn) 272 and Charles Onyango Obbo & Another Vs.
Attorney General (Supra).

In R.V. Jakes (1986) 26 DLR (4th Edn) at 227, the Supreme Court of
Canada laid down the principle of proportionality in determining
whether the limitation is reasonably justifiable in a free and
democratic society as follows:

"First, the objective which the measures responsible for a

limit on a charter right or freedom are designed to serve,
must be 'of sufficient importance to warrant overriding a
constitutionally protected right or freedom' .V. Big M Drug
Mart Ltd. (1985) 18 DLR (4th Ed) 321. The standard must
be high in order to ensure that objectives which are trivial
or discordant with the principles integral to a free and
democratic society do not gain protection. It is necessary
at a minimum that an objective relate to concerns which
are pressing and substantial in a free and democratic
society before it can be characterised as sufficiently
important. Secondly, once a sufficiently significant
objective is recognised, then the party invoking Section 1
(the limitation clause) must show that the means chosen

37
 are reasonable and demonstrably justified; This involves
a form of proportionality test. 'R.V. Big M. Drug Mart
Limited' (Supra) although the nature of the proportionality
test will vary depending on the circumstances, in which
each case courts will be required to balance the interests
of society with hosts of individuals and groups."
The Supreme Court went to identify three components of the
proportionality test:

"There are, in my view three important components of a

proportionality test. First the measures adopted must be
carefully designed to achieve the objectives in question.
They must not be arbitrary, unfair, or based on irrational
considerations. In short they must be rationally
connected to the objective. Secondly, the means even if
rationally connected to the objective in the first sense
should impact as little as possible the right or freedom in
question: R.V. Big M Drug Mart Limited (Supra). Thirdly
there must be a proportionality between the effects of the
measures which are responsible for limiting the charter,
right or freedom and the objective which has been
identified as of sufficient importance."

Those authorities establish that it is always necessary to determine

whether the legislative objective is sufficiently important to justify
hunting a fundamental right. It must be established that the
impugned action has an objective of expressing a substantial concern
of society in a free and democratic society. The courts have to strike
a balance between the interest of freedom and social interest, using
the three tests. Fundamental rights should not be suppressed
unless they are pressing community interests, which may be
endangered.

38
In determining what is acceptable and reasonably justifiable in a free
and democratic society, it is necessary to apply the principles on a
case to case basis because of the proportionality test, which calls for
the balancing of different interests. In the balancing process, the
relevant consideration will include:

(a) the nature of the right that is limited;

(b) its importance to an open and democratic society based on

freedom and equality;

(c) the extent of the limitation;

(d) the efficacy and particularly where the limitation has to be

necessary; and

(e) whether the desired ends could reasonably be achieved

though other less damaging means.

Although the Justices of the Constitutional Court declined to consider

the second issue framed at the hearing, they did in fact take into
account the principle that the right to education and freedom of
religion are not absolute and that in the enjoyment of their rights, the
appellants must not prejudice the fundamental rights and freedoms of
others or the public interest; as provided for under Article 43 of the
Constitution.

It is my view that had learned Justices taken into account all the
above principles, they would have come to the same conclusion that
the limitations imposed upon the right to education and freedom of
religion were justifiable in a free and democratic society.

The overriding object or purpose of the respondent’s policies and

regulation was an important and pressing social or community
interest, namely to improve access to quality University education at
reasonable costs for all Ugandans. The policy was not

39
discriminatory but was applicable to all students from various
religious beliefs. The extent and effect of the interference in the
enjoyment of the appellants’ rights and freedoms was minimized by
the reasonable accommodation extended to the appellants by the
respondent. To exempt the appellants from the policy and
regulations of the respondent or to grant them extra accommodation
would impose unbearable burden on the respondent which would
cause undue hardship and expense on the respondent.

The means adopted by the respondent to implement its policy and

regulations were rational, fair and proportional to the objective to be
achieved. In my view, the respondent adduced sufficient evidence,
and discharged the burden which lay on it, to establish that any
infringement on the appellants’ right to education and freedom of
religion was reasonably justifiable in a free and democratic society in
accordance with Article 43 of the Constitution. Accordingly, ground 5
should also fail.

Disposition:

I would, therefore, uphold the decision of the Constitutional Court that

the respondent’s policies and regulations are not inconsistent with
and in contravention of Articles 20, 29(1) (c), 30 and 37 of the
Constitution of Uganda in respect of the appellants. I would also
uphold the Court’s decision that the respondent did not have to claim
a lawful derogation in accordance with Article 43 of the Constitution.
I would hold that if it had been necessary to establish a lawful
derogation, the respondent had succeeded in establishing that it was
entitled to claim it.

In the result, I would dismiss this appeal. I would make no order as

to costs.

As the other members of the Court agree with this judgment and the

40
order I have proposed, this appeal is dismissed with no order as to
costs.

Dated at Mengo this ………………… day of ………………. 2006.

B J Odoki
CHIEF JUSTICE

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT MENGO
CONSTITUTIONAL APPEAL NO. 2 OF 2004

(CORAM: ODOKI CJ; ODER, TSEKOOKO, KAROKORA,

MULENGA, KANYEIHAMBA AND KATUREEBE JJ.S.C)

1. DIMANCHE SHRON
2. MOKERA GILPHINE ==============
APPELLANTS
3. NANSEREKO LUCK

VERSUS

MAKERERE UNIVERSITY ==============

RESPONDENTS

[APPEAL FROM THE JUDGMENT OF THE CONSTITUTIONAL

COURT AT KAMPALA (MUKASA-KIKONYOGO DCJ; MPAGI –
BAHIGEINE, BERKO, TWINOMUJUNI AND KITUMBA, JJ.A)
DATED 24/09/2003 IN CONSTITUTIONAL PETITION NO. 1
OF 2003]

JUDGMENT OF TSEKOOKO, JSC

I have had the benefit of reading in advance the draft judgments

prepared by their Lordships the learned Chief Justice and Katureebe,

41
JSC. Both have given the background to this appeal, set out the
contentious matters and the grounds of appeal.
I entirely agree that there is no merit in this appeal. Makerere
University, the present respondent, clearly warned all new students in
advance about the fact of conducting lectures and examinations on
all the days of the week. Each student as a fresher was made aware
of these facts through the Freshers Joining Instructions at the
commencement of the first year of admission to Makerere University.
The appellants were aware of this from day one. The Freshers
Joining Instructions were in conflict with their religious beliefs.
Instead of opting not to join Makerere University, the appellant
consciously chose to join and embarked on study knowing that by
taking these steps, they thereby bound themselves to abide by the
rules and regulations of Makerere University. Thy cannot therefore
turn around in the course of their study to seek special treatment
which treatment would tantamount to unwarranted disruption of vast
Makerere University programmes. The respondent’s evidence
especially the additional affidavit of Prof. P. J. M. Ssebuwufu,
demonstrate how far the respondent went to accommodate the
needs of the appellants.

I find no merit in any of the grounds of the appeal. I would dismiss

the appeal. I would make no order as to costs.

Delivered at Mengo this ……………. day of ……………….. 2006.

J. W. N. TSEKOOKO
JUSTICE OF THE SUPREME COURT

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA
AT MENGO

42
CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA,
MULENGA, KANYEIHAMBA AND KATUREEBE, JJSC)

CONSTITUTIONAL APPEAL NO. 02 OF 2004

BETWEEN

1. DIMANCHE SHARON }
2. MOKEIRA GILPHINE }: :::::: :::::: :::::: APPELLANTS
3. NANSEREKO LUCK }

VERSUS

MAKERERE UNIVERSITY: :::::: :::::: :::::: RESPONDENT

(Appeal from the judgment of the Constitutional Court at

Kampala (Mukasa-Kikonyogo, DCJ, Mpagi-Bahigeine, Berko,
Twinomujuni and Kitumba, JJ,A) dated 24-09-03, in
Constitutional Petition No. 01 of 2003).

JUDGMENT OF KAROKORA, JSC:

I have had the advantage of reading in draft the judgments prepared by my

Lords the learned Chief Justice and my learned brother, Katureebe, JSC
and I entirely agree that the appeal has no merit.

I only wish to add that the appellants were warned of the respondent’s policy
entitled ‘Makerere University Academic Registrar’s Department Freshers
Joining Instructions 1999/2000 Academic Years,’ before joining the
University. The policy states in bold letters as follows:
“Students are informed that University Programs may run seven days a
week. Since the University has students and members from various
religious backgrounds, the University may not heed the interests of a
particular group, particularly in the crucial areas of attendance of lectures
and/or examinations. You are therefore urged to respond to the academic
work in the faculty even if it takes place on respective days of worship.”

43
The document warns each student joining the University as
follows:

“NOTE: PLEASE DO READ THIS DOCUMENT AND

UNDERSTAND ITS CONTENTS VERY WELL”

The appellants are all members of the Seventhday Adventist Christian faith.
Apparently the cardinal tenet of their faith is based on the fourth
commandment of God to be found in the book of Exodus Chapter 20:8
which states:

“Remember the Sabbath Day by keeping it holy. Six days you shall
labour and do all your work, but the seventh Day is a Sabbath to the Lord
your God. On it, you shall not do any work, neither you, nor your son or
daughter, nor your man servant, nor your maid-servant, nor your animals
nor the alien within your gates. For six days the Lord make the heaven
and the earth, the sea and all that is in them, but he rested on the seventh
day. Therefore, the Lord blessed the Sabbath Day and it is holy.”

The appellants contend that because of this commandment, the University

Freshers Joining Instructions 1999/2000, the University regulation which
require students to attend lectures and take mandatory tests and
examinations on any day of the week, including the Sabbath Day
contravenes articles 20, 29(1)(c), 30 and 37 of the Constitution of Uganda.
They therefore, prayed in their petition to the Constitutional Court that the
regulation be declared null and void.
The Constitutional Court dismissed the petition.

Clearly the appellants joining the University were warned of the

University Policy before joining but before commencing studies that it will

44
conduct its programmes seven days a week. These regulations are not
discriminatory. They apply to all the students in order to run the University.
They do not affect any one who does not voluntarily choose to join the
University. In my view, if the appellants accepted to join the University
under specified conditions spelt out in the Freshers Joining Instructions
1999/2000 Academic Year, they cannot subsequently attempt to replace
the conditions under which they were admitted with the conditions which
suit their own religious beliefs. The University would rightly hold the
appellants out of order, because they bound themselves to abide by the
University regulations, which regulations do not violate their constitutional
rights.

In the result, I would dismiss the appeal.

Delivered at Mengo this: - - - - - day of: - - - - - - - - - - - - - - - - ,

2006.

A. N. KAROKORA
JUSTICE OF THE SUPREME COURT

IN THE SUPREME COURT OF UGANDA

AT MENGO

CORAM: ODOKI C.J., ODER, TSEKOOKO, KAROKORA, MULENGA

KANYEIHAMBA AND KATUREEBE JJ.S.C.

CONSTITUTIONAL APPEAL NO. 2 OF 2004

45
BETWEEN

1. DIMANCHE SHARON
2. MOKERA GILPHINE ::::::::::::::::::::::::: APPELLANTS
3. NANSEREKOLUCK

AND

MAKERERE UNIVERSITY :::::::::::::::::::::::::::::::

RESPONDENT
[Appeal from the decision of the Constitutional Court (Mukasa-Kikonyogo DCJ,
Mpaigi-Bahigeine, Berko, Twinomujuni and Kitumba JJ.A) at Kampala, in

Constitutional Petition No.1/02, dated 24th September 2003.]

JUDGMENT OF MULENGA JSC.

I had the advantage of reading in draft the judgments of the learned Chief
Justice Odoki and my learned brother Katureebe JSC. I agree with both that
this appeal ought to fail and should be dismissed with no order as to costs.
Makerere University, the respondent, as a secular educational institution has
the right to make regulations that it considers necessary for discharging its
statutory obligations and achieving its objectives. Its policy to increase
student intake and to initiate a variety of courses led to the introduction of a
regulation that requires students to attend lectures and take mandatory tests
and examinations on any day of the week. The policy and the regulation
neither prevent students from practicing their religions; nor deprive or deny
any student the right to education. The appellants, who profess the religious
faith of Seventh Day Adventists, joined the University with full knowledge
that under the said regulation they would be required to attend lectures and
take mandatory tests and examinations on any day, including the Sabbath
day. In my view, the admission of the appellants into the University did not
create or impose on the respondent any constitutional obligation to adjust its
programs to conform to the appellants’ religious practices. When

46
subsequently the respondent failed or refused to make special arrangements
for the appellants to sit the tests or examinations scheduled for the Sabbath
day outside the official hours, it did not thereby violate their freedom to
practice their faith as they prefer. The appellants had the choice to join the
University and adjust their religious practices to abide by its regulation; or to
pursue their education where they could adhere to their strict observance of
the Sabbath.

DATED at Mengo this day of 2006

J.N. Mulenga,
Justice of the Supreme Court.

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO
CORAM:
ODOKI, CJ, ODER, TSEKOOKO, KAROKORA, MULENGA,
KANYEIHAMBA, KATUREEBE, J.J.S.C

CONSTITUTIONAL APPEAL NO.2 OF 2004

BETWEEN

1. DIMANCHE SHARON
2. MOKERA GILPHINE ::::::::::::::::::::::APPELLANTS
3. NANSEREKO LUCK
AND

15 MAKERERE UNIVERSITY
::::::::::::::::::::RESPONDENT

[An appeal from the judgment and decision of the Constitutional Court

47
 (Mukasa Kikonyogo, .C.J, Mpagi-Bahigeine, Barko, Twinomujuni and
Kitumba, J.J.A) in constitutional petition No--------- dated 24th September,
2003.]

JUDGMENT OF KAYEIHAMBA, J.S.C

I have had the benefit of reading in draft the judgment of Odoki, the learned Chief Justice
and of my learned brother, Katureebe, J.S.C, and I agree with them that this appeal ought
to be dismissed for the reasons they have given.

I would make no order as to costs.

Dated at Mengo this ----------- day of ------------------------- 2006.

G.W. KANYEIHAMBA
JUSTICE OF THE SUPREME COURT
THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA, AT MENGO

CONSTITUTIONAL APPEAL NO 2/2004

(CORAM: ODOKI, CJ., ODER, TSEKOOKO, KAROKORA,

MULENGA, KANYEIHAMBA, AND KATUREEBE,
JJ.SC).

1. DIMANCHE SHARON}
2. MOKERA GILPHINE }
3. NANSEREKO LUCK }:::::::::::::::::::::::::::::::::
APPELLANTS

AND

MAKERERE UNIVERSITY :::::::::::::::::::::::::::

RESPONDENT

48
[Appeal from the decision of the Constitutional Court (Mukasa-
Kikonyogo D.C.J, Mpagi-Bahigeine, Berko, Twinomujuni and Katumba,
JJ.A) dated 24 September 2003 in Constitutional Petition No.1 of
2003].

JUDGMENT OF KATUREEBE, JSC.

This appeal is against the decision of the Constitutional Court which

dismissed a petition seeking protection of the right and freedom to
exercise religious beliefs as guaranteed by Article 29(1)(c) of the
Constitution of Uganda.

The appellants are Seventh Day Adventists Students at Makerere

University, the respondent. They contend that the policy and
regulations of the Respondent requiring the appellants to attend
lectures and sit examinations on Saturdays violate their constitutional
rights to religion in so far as it compels them to "work" on the
Sabbath Contrary to their religious belief. The Constitutional Court
dismissed their petition, hence this appeal.

The appellants were students of the respondent. They belong to the

Seventh Day Adventist Faith, which, it is stated, believes in the
sanctity of the Sabbath. To these believers, no work is to be done
on the Sabbath, which falls on the day commonly known as Saturday.
Accordingly the appellants contended that they could not attend
lectures or sit examinations on Saturdays as this amounted to doing
work on the Sabbath. They sought to be accommodated by the
Respondent by asking that they be allowed to sit their exams outside
the hours of the Sabbath, i.e. between sunset on Friday and
sundown on Saturday. There correspondence between the
appellants and members of their Faith on the one hand and the
officers of the Respondent on the other hand showing an attempt to
resolve the matter amicably.

49
The Respondent contends that it is a secular public university which
does not favour any particular religion. It says that in order to carry
out its legal mandate of expanding university education and making it
available to as many people as possible at the lowest cost possible,
the university formulated the policy that the core activities of the
University, like teaching and examinations, would take place on any
day of the week including Saturdays and Sundays. Regulations were
then formulated to implement this policy. This information was
made available to all persons intending to join the university
through the Joining Instructions and letters of admission sent out to
students. The Respondent 's position was that the appellants could
be accommodated by allowing them to re-take any missed
examination at the next sitting when that examination would be
offered, but it could not allow the appellants to sit at different times
from other students as this might compromise the integrity of the
examination results. It would also lead to extra costs.

When the Parties failed to reach amicable resolution, the appellants

filed a Petition in the Constitutional Court. They alleged that the
Policy of the Respondent and its regulations requiring the appellants
to attend lectures and sit examinations on Saturday (Sabbath)
violated their constitutional rights and was inconsistent with Articles
20, 29(1) ( c) and 30 of the Constitution. The Constitutional Court
heard the petition and considered affidavit evidence filed by both
parties and dismissed the petition by unanimous decision. Hence
this appeal

In this court, the appellants were represented by MR. Christopher

Madrama assisted by Mr. Frederick Sentomero and Mr.

50
Nsubuga Ssempebwa. The respondent was represented by Mr.
Dennis Wamala.

The appellants filed six grounds of appeal as set out here below:
1. That the learned Justices of the Court of
Appeal/Constitutional Court erred in law and fact
when they held that the Respondent policies and
regulations in issue are not inconsistent with
articles 20 and 30 of the Constitution and that the
Respondent was justified in requiring the
appellants to sit examinations on their Sabbath.

2. That the learned Justices of the Constitutional

Court/Court of Appeal erred in law and in fact and
misdirected themselves on questions of law and
fact when they held that the Respondent's policy
and regulations that compelled the appellants to
sit exams on their Sabbath or any day of the week
between 7 am in the morning and 10.00 p.m at
night is not inconsistent with and did not violate
the appellants human rights under articles
20, .29(1) (c ), 30 and 37 of the Constitution.

3. That the learned justices of the Constitutional

court erred in law when they held that the fresher
joining instructions of the Respondents notifying

51
 the Appellants on joining the Respondent
University that programmes would run seven days
a week and that the Respondent would not be
obliged to respect any day of worship was
sufficient notice that appellants fundamental tenet
of religion in respect of keeping a Sabbath on
Saturdays when required to sit exams on that day
and that the appellants should have turned down
the offer to join the respondent at the beginning.

4. That the learned Justices of the Constitutional

Court erred in law and in fact when they held that
the policy of the Respondent requiring students to
sit exams on the Sabbath irrespective of their
religion, did not give rise to an unconstitutional
burden on the appellants that violated their
freedom of religion by virtue of a fundamental
tenet of the Adventist Christian Faith.
5. The appellants shall demonstrate that the learned
Justices of the Constitutional Court severally
misdirected themselves on matters of law,
procedure and fact when they substantially found
that there was no inconsistency in the appellants
petition/case with article 20, 29, 30 and 37 of the
Constitution, there being no violation of any rights

52
 therein and the respondent therefore did not have
the onus of proving justifiable derogation from any
rights of the Appellants.

6. The learned Honourable Justices of the Court of

Appeal failed to properly evaluate the evidence
and therefore erroneously found that
accommodating Seventh Day Adventist students
on the Sabbath day issue would impair or
adversely affect the fundamental rights and other
freedoms of other persons.

Mr. Madrama argued, grounds 1, 3 separately, then grounds 2 and 4

together and finally ground 6 separately.

In respect of ground 5, counsel submitted that the learned Justices of

the Constitutional Court misdirected themselves in fact, law and
procedure when they held that the respondent did not have the
burden to prove that there was justification to derogate from
observance of the rights and freedoms guaranteed by the
constitution and therefore bring itself into the ambit of Article 43, of
the constitution. He argued that the Justices misdirected themselves
as to the application of Article 43, and cited the decision of this Court
in the case of CHARLES ONYANGO OBBO -Vs- ATTORNEY
GENERAL, Constitutional appeal No.2 of 2002 in support. He also
cited the Canadian case of THE QUEEN -Vs- OAKES, [1987] LRC
477 which had also been relied upon by the Constitutional Court.

53
In respect of ground 1, counsel submitted that the Justices of the
Constitutional Court were wrong to hold that the respondent did not
infringe Article 20 of the Constitution. He submitted that Article
20(2) puts a heavy burden on institutions like the respondent to
uphold human rights, and the respondent had totally failed to do
so. He further submitted that the court ought to have taken into
account the effect of the policy and regulations of the respondent
on the religious freedom of the appellants, which was to force them
to work (attend lectures and sit examinations on the Sabbath)
contrary to their faith. He cited the Canadian case of THE QUEEN -
Vs- BIG M DRUG MART LTD [1986] LRC (Const) P.332, as
authority for the proposition that in determining the constitutionality
of a law, both the purpose and effect of such law on individual rights
must be taken into account. In that regard he also cited the case of
ATTORNEY GENERAL -Vs- ABUKI AND ANOTHER, particularly
the Judgment of Oder, JSC which also considered the Canadian case
of QUEEN -Vs- BIG M DRUG MART (Supra). He also cited the
Zimbabwean case of Re CHIKWECHE [1995] 2LRC 93.

In arguing ground 3, Counsel submitted that the Justices were wrong

in law to hold that the appellants had waived their rights by joining
the respondent University knowing as they did that lectures and
examinations were offered seven days a week, and that the
appellants were therefore estopped from claiming violation of their

54
rights. Counsel cited the Indian Case of TELLIS AND OTHERS
-Vs BOMBAY MUNICIPAL CORPORATION and OTHERS [1987]
LRC 351; and also the Case of SYNDICATE NORTHCREST -Vs-
AMSELEM [2004] 2 SCR 550 as authority for the proposition that
constitutional rights could not be waived.

In respect of grounds 2 and 4 counsel submitted that the Justices

were wrong to find that the policy and regulations of the Respondent
were not inconsistent with Articles 20, 29(1) (c), 30 and 37 of the
constitution and for failure to find that those regulations constituted
an unconstitutional burden on the appellants by requiring them to sit
examinations and attend lectures on Sabbath. He argued that
freedom of religion included the right to manifest religion through
practice, which would be infringed if the appellants had to sit
examinations and attend lectures on the Sabbath. Counsel further
submitted that court was wrong to question the sincerity of the
appellants' beliefs. He cited the Drug Mart Case (supra) in further
support of his argument.

On ground 6, counsel submitted that the learned Justices did not

properly evaluate the evidence so as to find that the respondent
could and should have accommodated the appellants. Had the
Justices properly evaluated the affidavits of the appellants in
rejoinder, they would have found that the respondent should have
accommodated the appellants. Counsel, in conclusion, prayed
that this Court should set aside the judgment of the Constitutional
Court, and make declarations that the respondent's policy and
regulations are inconsistent with the Constitution, and that that the

55
appellants are entitled to accommodation and to make orders
accordingly.

For the respondent, Mr. Wamala commenced his submissions by first

arguing that grounds 3, 4,5 and 6 were defective in so far as they did
not contain the unanimous holdings of the justices of the
Constitutional Court. To him, the learned Justices did not hold that
the respondent's Joining Instructions were sufficient notice that
absolved the respondent from observing fundamental rights as
alleged in ground 3 of appeal, nor did the Justices hold that the
respondent did not have the onus to prove derogation as per Article
43 of the Constitution, as alleged in ground 5 of appeal. He further
argued that the Justices did not hold that accommodating the
appellants on the Sabbath day would adversely affect the majority.

He contended that all the six grounds of appeal can be summarised

into one ground, i.e. whether the respondent's policy and Regulations
are inconsistent with and in contravention of Articles 20, 29(1)
(c ),30, 37 and 43 of the Constitution, and whether the respondent is
entitled to claim lawful derogation under Article 43.

Counsel submitted that not every infringement of a fundamental right

constitutes an unconstitutional act. The test is the "substantial
burden" i.e. whether an infringement constitutes a substantial
infringement. He cited the SYNDICATE case (supra) particularly
pages 584 and 585 paragraph 3. He further argued that rights are
not absolute. To amount to a violation of the Constitution, the
violation must be substantial. He argued that one needs to show
the sincererity of one's beliefs to be able to claim a violation of such
beliefs. He submitted that in so far as the appellants had signed the
admission instructions form of the respondent, they waived their
constitutional rights and cannot claim violations of these rights by the
Respondent. He referred us again to the SYNDICATE case (supra)

56
at pages 597, 598 and 599.

In summarising his submission on the first part of the question he

had posed, counsel submitted that the regulations were not
unconstitutional. He submitted that the Constitution had to be
looked at as a whole. Articles 29(1) ( c), 20 and 37 are not
absolute, and regard had to be had to the prejudice that would be
occasioned to other students. In that regard, he relied on the
affidavits evidence of the Vice Chancellor and the Guild President,
and cited Objective 18 of the National Objectives and Directive
Principles of State Policy of the Constitution and section 3 of the
Universities and Tertiary Institutions Act in support of his argument.

On the second part of the question, i.e. whether there was a

justifiable derogation under Article 43, Counsel submitted that based
on the affidavits of the Vice Chancellor and the Guild President, there
was evidence that the interest of the public would be adversely
affected. He cited Black's Law Dictionary for the definition of
"public interest", and THE QUEEN Vs- OAKES [1987] LRC
472 for the proposition that the standard of proof of the need for
derogation is by preponderance of probabilities and not proof beyond
reasonable doubt. Counsel contended that there was need to
balance and weigh the competing provisions of the Constitution, i.e.
the right to education versus the right to religion. He further
contended that one had to apply the proportionality test, and the
measure adopted had to be carefully designed to achieve the public
objectives. In counsel's opinion, the measure must not be unfair,
arbitrary and based on irrational considerations. He submitted that
the affidavit of the Vice Chancellor showed that all the criteria had

57
been met, and therefore there was justifiable derogation under
Article 43. He also cited the Onyango Obbo case (supra) in
support of his argument.

Counsel further submitted that under the circumstances, the

respondent had offered sufficient accommodation to the appellants.
To accommodate them further as they wished would create a heavy
burden on and adversely affect the operations of the respondent in
terms of rationalising examinations, extra expenses and costs. He
cited the case of COMMISSION SCOLAIRE REGINALE DE
CHAMBLY-Vs- BERGEVIN [1994] 2 S.C.R (CANADA) 526, at
pages 544 - 545.

In reply, Mr. Madrama argued that the case of SYNDICATE (supra)

had been quoted by counsel for respondent out of context in respect
of sincerity of belief and of waiver of rights. He submitted that
the instant case was one where waiver could apply. The admission
form given to students was not signed by them so there could be no
explicit waiver. He referred to the Tellis case (supra), and also the
Syndicate case at page 579 - 580, 583 and 584 . He denied that
the grounds of appeal were defective in any way. The appellants
were entitled to be admitted into the respondent as a public
institution and they should not be denied entry because of their
beliefs. He cited section 28(1) of the Universities and Tertiary
Institutions Act which allows admission of all students.

58
This case raises a very important issue relating to the need to
balance observance of human rights of the individual, and the public
interest. I agree with learned counsel for the respondent that the
question in this case is whether the respondent's policy and
regulations were inconsistent with and in contravention of Articles 20,
29(1)(c ), 30, 37 and 43 of the Constitution, and whether the
respondent was entitled to claim a lawful derogation under Article 43.
In my view, all the six grounds of appeal filed by the appellant
actually revolve around that question. Indeed at the hearing of the
Petition in the Constitutional Court, the above question was framed
as issues number one and two. The third issue was abandoned and
the fourth issue related to remedies.

Counsel spent considerable time arguing ground 5 to the effect that

the Justices of the Constitutional Court had misdirected themselves in
law and fact in holding that the respondent did not have the burden
to prove that it was entitled to derogation under Article 43. He
contended that the onus was on the respondent to prove that any
derogation claimed had to be demonstrably justifiable in a democratic
state. In the light of the criticism of the Court by counsel for the
appellants, it is necessary to examine what the learned Justices
actually stated on this point.

In her lead Judgment, Mukasa-Kikonyogo, DCJ, stated:

"The Policy was applicable to all students and

groups of various time. The policy was not
intentionally directed at the Petitioners but to
benefit the majority student population.
Moreover, it is trite that human rights and
freedoms must be enjoyed within limits as
provided under Article 43 of the Constitution".

"Article 43(1) provides:

"In the enjoyment of the rights and freedoms
prescribed in this chapter, no person shall
prejudice the fundamental or other Human Rights

59
 and freedoms of others or the public interest."

"Human rights, hence, are not absolute but

enforceable within reasonable limits. It is worth
while noting that the respondent has to plan and
cater for all religious denominations based on
different tenets. The University would find it
difficult to implement its objectives if it were to
give exemptions to all of them. Hence Professor
Ssebuwufu in his affidavit evidence in paragraph 9
(supra) which has not been contravened deponed,
inter alia, that the University cannot grant the
petitioners' request which includes offering
"special examinations to those students who are
unable to attend examinations on particular days
due to religious considerations or for any reason
because such practice would create a variance in
academic standards and further lead to an
increase in the cost of education."

It would appear to me that the learned Deputy Chief Justice did

address the concerns of Article 43 and seemed to be satisfied with
the affidavit evidence of the Vice Chancellor, justifying the need for
derogation under Article 43. I do not see any holding in her
judgment to the effect that the respondent did not have the onus to
prove the need for lawful derogation . I accordingly hold that there
was no misdirection of any nature on this point by the DCJ.
In her judgment, Mpagi-Bahigeine, JA states at page 12:
“It is incumbent upon the Petitioners to show that they
are entitled to the remedies they seek on the grounds
that their fundamental and human rights have been
infringed by the respondent’s policy. However, the
respondent must show justification for a lawful
derogation from such fundamental rights. This must
be within the ambit of article 43 (2).”

The learned Justice then cites the case of R -Vs- Oakes (supra).

60
This shows that the learned Justice addressed her mind to the issue
of burden of proving justification for a derogation under Article 43.
But she later found that there was "no inconsistency between the
respondent's policy and the impugned articles, the respondent does
not have to seek to be covered under a lawful derogation under
article 43.”

Again I see no misdirection by the learned Justice on this issue as

claimed by the learned Counsel for the Appellants. The learned
Justice made a finding that the policy of the respondent was not
inconsistent with the impugned Articles, and there was therefore no
used to invoke Article 43.

In his Judgment, Twinomujuni, JA, at page 15 also cites Article 43

and also finds that:-
“Makerere University regulations do not in any way
violate or contravene the Petitioners Constitutional
rights of religion and education.”

Having answered the first issue in the negative, Twinomujuni, J.A, did
not think that the respondent needed to claim the protection afforded
by Article 43. In her Judgment, Kitumba, J.A, also addressed the
issue of Article 43 at page 17, but having found that the policy and
regulations of the respondent were not inconsistent or in
contravention of Articles 20, 29(1)( c), 30 and 37, of the Constitution,
the learned Justice, held that the question of lawful derogation did
not arise.

61
Counsel for the Appellant cited the case of Onyango Obbo and R –
Vs- Oakes (supra). I agree with the holdings in those cases which
is to the effect that a person seeking to show a lawful derogation
must prove that the circumstances exist that justify the derogation.
But in my opinion, one must start with proof by the petitioners that
their rights have been infringed by the respondent. The respondent
then would have the burden to prove a justification for a lawful
derogation.

In this particular case, the learned Justices found that the appellants
had failed to prove that the policy and regulations of the Respondent
were inconsistent with the named Articles of the Constitution and
therefore the case did not call for the need to prove derogation by
the respondent. Learned Counsel pointed to some Orbita dicta in
the judgments which, he asserted, indicated that the learned Justices
had found that the rights of the appellants were affected. Counsel
used the word “affected” and seemed to imply that it had the
same meaning as “infringed.” The proper word and what ought to
be proved by evidence is “infringement” of the rights. Black’s

th
Law Dictionary 6 Edition defines “infringement” as ”a
breaking into; a trespass or encroachment upon; a violation of a law,
regulation, contract, or right.” Merely "affecting" the rights would not
do. The Judges found as fact that there was no infringement. This
is the finding that Counsel should have attacked. He failed to do so.

62
In the circumstances, I find that ground 5 has no merit and must fail.

I now turn to ground 1 which in my view presented a more

substantive issue. Counsel argued that the learned Justices were
wrong to hold that the respondent did not infringe Article 20 of the
constitution. What the Justices held actually was that the policy and
regulations of the respondent were not inconsistent with or in
contravention of Article 20 (2). It is necessary to quote the exact
wording of the Article for better appreciation of its import.

Article 20 (2) states as follows:

“The rights and freedoms of the individual and groups
enshrined in this chapter shall be respected, upheld and
promoted by all organs and agencies of Government
and by all persons.”

The Constitutional Court did spend considerable time considering this

Article. Mukasa-Kikonyogo, DCJ in her Judgment states this:

“On Article 20 of the Constitution, I appreciate the

submissions of Counsel on the effect of the Petitioners’
rights. It is true the respondent has a duty to
accommodate the Seventh Day Adventists students
minority but on condition that the policy on the
Petitioners’ rights under Article 20 of the Constitution is
not prejudicial to other people’s rights in the University.
Article 20 (2) imposes an affirmative constitutional duty
on the respondent to respect, uphold and promote the
religious beliefs of the Petitioners and other members
of their faith. I do not agree that on the evidence on
record the respondent forced the Petitioners to
participate in the respondent’s educational programmes
on Sabbath day.”

In my opinion, Article 20 (2) cannot and should not be looked at in

isolation of the rest of the Constitution. I agree with Kitumba, JA, in

63
her judgment where, while citing the Tinyefunza -Vs- Attorney
General case, she states that the various provisions of the
Constitution must be read together for purposes of harmony,
completeness and exhaustiveness in interpreting it. Both she and
the other Justices go to great lengths to show this practice in
construing Constitutional instruments.

Furthermore, the appellants had to prove that the respondent had

refused or failed to respect, uphold and promote the right to religion
of the appellants. According to evidence on record the respondent is
a secular public institution. It had certain duties pursuant to its
Charter and the Universities And Other Tertiary Institutions Act. The
policy of the respondent to utilize all the seven days of the week for
teaching and examinations was meant to improve the quality of
education and to expand the intake into the University so as to give
as many people as possible a chance to access university education
at as reasonable a cost as possible. The respondent went to great
lengths to inform the appellants and the public at large about this
policy, and to emphasize that anyone joining the University, would be
expected to attend lectures or sit examinations on any of the days of
the week. The appellants joined the University well knowing this
position. This was attested by affidavits of the appellants
themselves and of the Vice Chancellor of the University, Prof.

th
Ssebuwufu. In his affidavit dated 7 May 2003, the Vice Chancellor
also outlined the alternative possible measures that could be put in

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place to accommodate the appellants and others who may have
difficulties in attending lectures or sitting examinations on Saturdays.
He stated in paragraph 7 thus:-
"The University has made alternative provisions to such as of
its students who may not be able to attend lectures and or
examinations on a given day or time of the week in the
following ways:-
(a) “Students are offered an opportunity at the time of
admission, to change course and or subjects in light of
the provided timetables. The new students (freshers)
are granted an option, where possible, to offer courses
with the most convenient timetable.

(b) Students who may be unable to sit an examination held

on weekends or at any time of the week in a particular
semester are allowed to apply to their respective
deans/directors to retake the course and or
examination when it is next offered.

(c ) Students who are unable to attend lectures and or

tutorials held on a particular day or time of the week
are not restrained from attending the same
lectures/tutorials with students of different
programmes held on another day or at another time
during the semester.”

This evidence clearly shows that the respondent did not fail or refuse
to respect, uphold or promote the rights of the appellants. It is clear
that the respondent was alive to the concerns of the appellants.
Genuine attempts were made to accommodate them. I therefore
cannot agree with Mr. Madrama’s submission that the respondent
failed to observe Article 20(2) in all respects, or at all.

The other limb of Counsel’s argument was that the effect of the

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policy and regulations is what ought to be considered. He submitted
that the effect was to compel the appellants to sit examinations on
Saturday thereby making them either to do work on the Sabbath and
stand condemned by God, or miss the examinations and lose their
studies which put a very heavy and unconstitutional burden on them.
He argued that the appellants had to miss exams and yet there was
no guarantee that the examination when next offered would also not
be on Sabbath. This had meant in some cases that students have
had to stretch their courses beyond the period the course would
normally take. He cited the Drug Mart Case, the Abuki Case and the
Chikweche Case, (supra) in support.

The learned Justices also considered the above cited cases. So

they addressed their minds to the issues and decisions therein. At
page 12 of her judgment, Mpagi – Bahigeine, JA, had this to say.

“Both the purpose and effect of the policy impugned

must be examined to determine its validity or invalidity.
Purpose and effect are indivisible to the animation of
the regulation or law – See The Queen –Vs- Big M Mart
(Ltd) (1986) LRC 332 where the applicable test was laid
down;

“Both purpose and effect are relevant in determining

constitutionality: either an unconstitutional purpose or
an unconstitutional effect invalidate legislation. All
legislation is animated by an object the legislature
intends to achieve. This object is realised through the
impact produced by the operation and application of the
legislation. Purpose and effect respectively in the

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 sense of the legislation’s object and its ultimate impact
are clearly linked, if not indivisible. Intended and
actual effect have often to be looked to for guidance in
assuming the legislation’s object and thus its validity.”

Having thus considered the Big M Mart case, the learned Justice
went on to hold that the respondent’s policy and regulations, both in
purpose and effect had not violated the appellants’ rights. I agree
and would go further to quote the words of Chief Justice Warren of
the USA in the case of Braunfeld –Vs- Brown quoted in the Drug
Mart Case at page 357:
“Of course, to hold unassailable all legislation
regulating conduct which imposes solely an indirect
burden on the observance of religion would be gross
oversimplification. If the purpose or effect of a law is
to impede the observance of one or all religions or is
to discriminate invidiously between religions, that law
is constitutionally invalid even though the burden may
be characterised as being only indirect. But if the State
regulates conduct by enacting a general law within its
power, the purpose and effect of which is to advance
the State’s secular goals, the statute is valid despite its
indirect burden on religious observance unless the state
may accomplish its purpose by means which do not
impose such a burden.” (emphasis added).

In my view the above statement is relevant to the instant case. In

his affidavit, the Vice Chancellor stated how the policy of offering
lectures and examinations on any day of the week has helped expand
student intake, reduced costs and improved the quality of education.
He has stated how setting separate examinations for the appellants

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might adversely affect the respondent by compromising the integrity
of the examinations, how it would lead to higher costs, etc. Clearly,
much as there might be some burden on the appellants, it was
outweighed by the need to promote the public interest by furthering
the secular objectives of the respondent. In my view, the stated
objective of the respondent to expand University intake at as low a
cost as possible to the students as a whole is sufficiently substantial
to warrant overriding the concerns of the appellants. In the Drug
Mart case at page 369 Dickson, J states:
“Once a sufficiently significant government interest is
recognised then it must be decided if the means
chosen to achieve this interests are reasonable – a form
of proportionality test. The Court may wish to ask
whether the means adopted to achieve the end sought
do so by impairing as little as possible the right or
freedom in question.”

I have no doubt in my mind that the means adopted to achieve the

University’s objectives were reasonable given the background and the
accommodation that was offered to the appellants. This case is to
be distinguished from the Abuki case where the measures
complained against were the banishment of the petitioner from his
home, his land and family, which no doubt imposed an
unconstitutional burden on him. Here, the appellants have been
admitted into the University and are not being asked to leave the
university because of their faith. They are instead being allowed to
extend their stay by taking the missed examinations at a later time.

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In the circumstances, I agree with the findings of the Justices of the
Constitutional Court that the policy and regulations of the respondent
were not inconsistent with or in contravention of Article 20(2) of the
Constitution. Therefore ground 1 of appeal also fails.

On ground 3, Counsel argued that the Justices of Appeal had

misdirected themselves in law and fact in holding that the appellants,
by accepting to join the respondent had thereby waived their right to
freedom of religion. He submitted that waiver could not apply in the
matter of enjoyment of a fundamental human right. He cited the
Syndicate Case (supra). The issue here is whether there can legally
be a waiver of fundamental rights. In the Syndicate case, the
court observed at page 597:
"Whether one can waive a Constitutional right like
freedom of religion is a question that is not free from
doubt"

Later at page 598, it states:-

"Second, by its very nature, waiver of any right must be
voluntary, freely expressed and with a clear
understanding of the true consequences and effects of
so doing if it is to be effective."

Again at page 600 it is stated:-

"Third, at a minimum, waiver of a fundamental right
such as freedom of religion if possible at all, presumably
need not only be voluntary; it must also be explicit,
stated in express, specific and clear terms. Not only
would a general prohibition on constructions, such as
the one in the declaration of co-ownership, be
insufficient to ground a finding of waiver, but arguably
so would any document lacking an explicit reference to
the affected charter right."

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Considering the facts of this case, can it be said that the appellants
waived their right to religion or to education?. In her judgment, at
page 17, Mukasa-Kikonyogo, DCJ had this to say:
" I wish to emphasize that, the provisions of Article 30
notwithstanding, University Education is not
compulsory and is not obtainable only from the
respondent. The petitioners had an option to join other
Universities and other tertiary institutions. With
regard to the alleged unconstitutional burden, the
respondent's policy did not prohibit the Petitioners or
hinder them from practicing, or believing or
participating in any religions activities. The policy did
not hinder any promotion of their creed or religion in
Community with others under Article 37"

At page 18, the learned DCJ, goes on to state:

"I am unable to agree, as suggested by the petitioners,
that they have suffered any damage as a result of the
respondent's, inflexible conduct. On the other hand,
the respondent has had a dialogue with the petitioners
and other members of their faith on the policy, with a
view to finding a possible solution to the respondent's
problem, but the petitioners did not consider the
alternatives offered to them satisfactory. The
respondent's policy complained of by the petitioners
was fair and its students including the petitioners
voluntarily joined the University………….the provisions
of the constitution allegedly violated by the respondent,
must be considered together with those of the rest of
the students population. The effect of the respondent's
policy did not impede the observance of the petitioners
religions principles. There was no threat or academic
detriment to the petitioners …………if any it was self
imposed because the petitioners had a choice, it was up
to them to take the offer or reject it." (emphasis added).

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In my view the learned D.C. Justice properly addressed herself to the
law and the facts of the case and I see no misdirection on her part.
Articles 20, 29 and 30 of the Constitution must be read together with
article 43. It is pertinent to set out the provision of Article 43(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" (emphasis mine).

Objective XVIII of the National Objectives and Directive Principles of

State Policy, which are supposed to help us interpret the Constitution
states, inter alia, as follows:

(i) "The State shall take appropriate measures to

afford every citizen equal opportunity to attain the
highest educational standard possible".

(ii) Individuals, religious bodies and other non-

governmental organisations shall be free to
found and operate educational institutions if they
comply with the general educational policy of the
country and maintain national standards."

The right to education which is enshrined in Article 30 must be

looked at in the context of the above principle. The Universities and
Other Tertiary Institutions Act, under which the respondent's policy
and regulations are based, must also be looked at in that context.
The affidavit evidence of Prof. Ssebuwufu clearly brought out how the
policy has positively affected the objective of giving greater access to
university education to more citizens than before and at reasonable
cost. This, to me, is the type of "public interest" that the framers of

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the Constitution had in mind in enacting Article 43(1). Although
"public interest" is not defined in the Constitution, one may find an
th
instructive definition in Black's Law Dictionary 6 Edition:

"Something in which the public, the community at

large, has some pecuniary interest, or some interest by
which their legal rights or liabilities are affected
Interest shared by citizens generally in affairs of local,
state or national government."

In my view, the policy of the respondent was meant to serve an

important public interest pursuant to the requirements of the
Constitution and the law. The appellants seem to imply that their
own rights must be enjoyed irrespective of the negative effects that
may have on the public interest, i.e. irrespective of the implications
for the integrity of the examinations, the costs to the respondent or
the overall costs to the other students. They do not accept the
accommodation offered to them by the respondent. In my view
article 43(1) was alive to this type of situation so that the appellants
ought to have known that their enjoyment of their right to religion or
to education was not absolute. It had to take into account the rights
of others as well as the public interest.

It is in that context that the learned Justices of the Constitutional

Court suggested that the appellants had a choice to go to other
institutions where their interests could be better accommodated; I do
not agree with Counsel for the appellants that this amounted to
asking the appellants to waive their right to freedom of religion or
religious practice. All the relevant provisions of the Constitution had
to be looked at as a whole, which the learned Justices of Appeal did.
In my view, the Syndicate case is distinguishable from the present
case. The appellants were not required at any time to waive their

72
right to freedom of religion. They could have chosen another
institution or accepted the accommodation offered by the
respondent. I therefore hold that this ground of appeal has no merit
and ought to fail.

Grounds 2 and 4 were argued together. Counsel submitted that

freedom of religion entailed the right to manifest that religion
through practice. The sincerity with which a person held his beliefs
was not to be questioned. Counsel criticised the judgment of
Twinomujuni, JA. He based his criticism on the authority of the
Drug Mart Case (supra). The material part of that judgment (at
page 359) reads:
"Freedom in a broad sense embraces both the absence
of coercion and constraint, and the right to manifest
belief and practices. Freedom means that, subject to
such limitations as are necessary to protect public
safety, order, health, or morals or the fundamental
rights and freedoms of others, no one is to be forced
to act in a way contrary to his beliefs or his conscience ".

On the facts and evidence of this case, I do not see that the
appellants were being coerced into anything. They were being
reminded that they knew about the policy of the respondent, who
was offering them some accommodation so that they could still
practice their faith.

The question of sincerity of belief is very important and deserves

consideration. Were the sincerity of the appellants' belief questioned
in any way?. In the Syndicate case, (supra) it was stated at page
553:

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 "Freedom of religion……….consists of the freedom to
undertake practices and …………beliefs, having a nexus
with religion, in which an individual demonstrates her
or she sincerely believes or is sincerely undertaking in
order to connect with the divine or as a function of his
or her spiritual faith, irrespective of whether a
particular practice or belief is required by official
religious dogma or is in conformity with the position of
religious officials. This understanding is consistent
with a personal or subjective understanding of freedom
of religion. As such, a claimant need not show some
sort of objective religions obligation, requirement or
precept to invoke freedom of religion. It is the
religions or spiritual essence of an action, not any
mandatory or perceived-as-mandatory nature of its
observance that attracts protection. The state is in no
position to be, nor should it become, the arbiter of
religious dogma. Although a court is not qualified to
judicially interpret and determine the content of a
subjective understanding of a religious requirement, it
is qualified to inquire into the sincerity of a claimant's
belief, where sincerity is in fact at issue. Sincerity of
belief simply implies an honesty of belief and the
court's role is to ensure that a presently asserted belief
is in good faith, neither fictions nor capricious, and that
it is not an artifice. Assessment of sincerity is a
question of fact that can be based on criteria including
testimony, as well as an analysis of whether the alleged
belief is consistent with his or her other current
religions practices."(emphasis mine).

The above guidelines are very useful in considering whether in this

case the sincerity of the appellants' beliefs was put into question.
The appellants filed affidavits in which they stated that as Seventh

74
Day Adventists they sincerely believed that God's commandments
required complete rest from doing work on the Sabbath. To do any
work amounted to sin for which one would be condemned to hell.
Indeed, to me, it is indicative of the sincerity with which they held
this belief that they were prepared to postpone examinations and risk
repeating a year for the sake of their beliefs. In my view no Court
or anyone else should question this, nor did anyone question it.
The problem seems to have come from Dr. Kakembo who testified as
an expert on the beliefs of the appellants. In his affidavit, Dr.
Kakembo attached certain literature including the Holy Bible to prove
that the Sabbath is a day of total rest without any work at all. This
invited the legal officer of the respondent, Nabawesi, to file an
affidavit in reply to show that in the Bible there were exceptions to
work on the Sabbath, given by Jesus Christ himself. It is this Bible
that Twinomujuni JA, quoted, in his judgment, to show that indeed
the Bible does contain exceptions to the rule that no work should be
done on Sabbath.

In my view, the Constitutional Court should have accepted the

affidavit in rejoinder of Dr. Kakembo whereby he explained away,
according to the Seventh Day Adventists beliefs, the supposed
exceptions as not being exceptions within their faith. Court cannot
tell the appellants what they should believe. It is what they believe
that is important, and I am satisfied that in this case the sincerity of
that belief was not under criticism. In any event references to the
Bible did not affect the outcome of the case since the Justices held

75
that the policy and regulations of the respondent were not
inconsistent with or in violation of Articles 20, 29 or 30 of the
Constitution for reasons other than sincerity of belief.

It is important for the appellants and other members of society to

appreciate that the rights and freedoms of the individual in respect of
religion or education enshrined in the constitution are not absolute.
They are enjoyed within certain acceptable limitations envisaged
within the Constitution itself, and also in the context of a person's
own duty to the society. At a time when there is a stated national
objective to give more citizens access to university education at
affordable costs, and when there is clear evidence that the policy of
the respondent is promoting that objective, there is need to balance
the rights of individuals with the national good or public interest so
that reasonable accommodation is accorded to both concepts . It is
not in the public interest for a person to emphasize his or her own
freedom or right irrespective of how this impacts on the rest of
society. To say that examinations be held between 7.30 p.m and
9.00 p.m which is the time for evening classes, as stated in the
affidavit of Irankunda, but without taking into account what happens
to those classes, or how this switch will affect the university
administratively or costwise, is in my view, not being cognisant of the
public interest. In my opinion the Constitutional Court was right to
believe the affidavit of the Vice Chancellor in that regard. Therefore
grounds 2 and 4 of the appeal ought to fail.

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On ground 6, counsel submitted that the Justices of the
Constitutional Court did not properly evaluate the evidence. He
asserted that had they properly evaluated the evidence in the
affidavits in rejoinder by the appellants, the court would have found
that the appellants and members of their faith could have been
accommodated.

I have already covered some aspects of this ground. The court

considered the affidavits of the appellants alongside the affidavits
filed by the respondent, particularly the affidavits of the Vice
Chancellor whose evidence, court observed, was not controverted.
The court considered all the evidence in the context of the provisions
of the Constitution being read together for a purposive and
harmonious interpretation of the Constitution. Court came to the
conclusion that there was great public interest at stake and that
there was no inconsistency with the Constitution. The suggested
methods of accommodation by the appellants, such as that they
should be locked up during examinations, were considered to be
unworkable. The respondent, on the other hand had offered
accommodation to the appellants which they refused. I find no valid
reasons for this court to interfere with the findings of the
Constitutional Court. Ground 6 should also fail.

In the result, I would dismiss this appeal. However since this was a
matter of public interest, I would make no orders as to costs.

Dated at Mengo this ……1st……………day of……August.…….2006.

…………………….
Bart M. Katureebe
Justice of the Supreme Court

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