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.

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 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 1^st and 2^nd appellants) and “Legal Aspects of Planning” (for the 3^rd appellant) on Saturday, 25^th 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 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 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 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 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 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 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 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 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.