The drafting history of the provision on the right to freedom from discrimination in the Ugandan Constitution with a focus on the grounds of sex, disability and sexual orientation
| Date | 01 March 2012 |
| Published date | 01 March 2012 |
| Author | Jamil Ddamulira Mujuzi |
| DOI | 10.1177/1358229112453404 |
| Subject Matter | Articles |
Article
The drafting history of
the provision on the
right to freedom from
discrimination in the
Ugandan Constitution
with a focus on the
grounds of sex, disability
and sexual orientation
Jamil Ddamulira Mujuzi
Abstract
Article 21 of the Constitution of Uganda provides that all persons are equal before the
law and prohibits discrimination on the grounds of sex, race, colour, ethnic origin, tribe,
birth, creed or religion, social or economic standing, political opinion or disability. This
article examines the drafting history of Article 21, and then that of two grounds that
received the most attention during the constitution-making process: sex and disability.
The article illustrates that, although one delegate argued that the Constitution should
prohibit discrimination on the ground of sexual orientation, this submission was rejected
by most of the delegates. It also illustrates how the delegates’ views on homosexuality
influenced the manner in which the constitutional provision on marriage was drafted.
The author also, in passing, highlights the emerging jurisprudence of the Ugandan courts
on Article 21, and shows that women’s rights organisations have relied on Article 21 to
persuade the Constitutional Court to declare some provisions of some pieces of
legislation unconstitutional.
University of the Western Cape, Cape Town, South Africa
Corresponding author:
Jamil Ddamulira Mujuzi, University of the Western Cape, Cape Town, South Africa
Email: djmujuzi@gmail.com
International Journalof
Discrimination and theLaw
12(1) 52–76
ªThe Author(s) 2012
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229112453404
jdi.sagepub.com
Keywords
Discrimination, Uganda, Constitution, women, disability, gay men, lesbians
Introduction
Article 21 of the Constitution of Uganda
1
protects the rights to equality and freedom
from discrimination. It provides that:
1. All persons are equal before and under the law in all spheres of political, economic,
social and cultural life and in every other respect and shall enjoy equal protection of
the law.
2. Without prejudice to clause (1) of this article, a person shall not be discriminated
against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or reli-
gion, social or economic standing, political opinion or disability.
3. For the purposes of this article, ‘discriminate’ means to give different treatment to
different persons attributable only or mainly to their respective descriptions by sex,
race, colour, ethnicorigin, tribe, birth, creed or religion, social or economic standing,
political opinion or disability.
The right to freedom from discrimination is also protected in regional and international
human rights instruments to which Uganda is a party,
2
and Uganda has informed the
enforcement bodies of some of these treaties on the measures taken to promote and pro-
tect the right to freedom from discrimination.
3
This article discusses the drafting history
of Article 21 of the Constitution, focusing on the two grounds that received the most
attention during that process: sex and disability. The article also discusses the conten-
tious issue, in the Ugandan context, of the right to freedom from discrimination of people
in same-sex relationships or those presumed to be in same-sex relationships, and high-
lights how the Constituent Assembly objected to the inclusion of sexual orientation as
one of the grounds upon which a person may not be discriminated against. The author
also refers to decisions of the Constitutional Court of Uganda and the High Court that
have dealt especially with the rights of women and people in same-sex relationships.
It is beyond the scope of this article to discuss the Constitutional Court judgments on
women’s rights and the high court decisions on same-sex relationships because these
cases, as it is indicated in the notes, have been discussed widely. At the end of the article,
the author briefly discusses the jurisprudence emanating from the Ugandan courts on the
protection of the right to freedom from discrimination generally. Put differently, the aim
of this article is to discuss the drafting history of Article 21 of the Ugandan Constitution.
The right to freedom from discrimination and its inclusion in the Constitution
The history of Uganda has been characterised by gross human rights violations, includ-
ing the violation of the rights to equality and freedom from discrimination.
4
In 1988, the
Ugandan government established the Constitutional Commission, popularly known as
the Odoki Commission because it was headed by Mr Benjamin Odoki, which traversed
Mujuzi 53
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