THE REPUBLIC OF UGANDA
PETITION FOR DECLARATIONS UNDER ARTICLE 137 OF THE CONSTITUTION OF THE REPUBLIC OF UGANDA, 1995
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ
HON. JUSTICE A.E.N. MPAGI-BAHIGEINE, JA
HON. JUSTICE J.P. BERKO JA
HON. JUSTICE A. TWINOMUJUNI JA
HON. JUSTICE C. N. B. KITUMBA JA
CONSTITUTIONAL CAUSE NO. 01 OF 2003
THE FUNDAMENTAL RIGHTS AND FREEDOMS (ENFORCEMENT PROCEDURE) RULES, 1992 DIRECTIONS 1996
1. DIMANCHE SHARON
NANSEREKO LUCK PETITIONERS
THE MAKERERE UNIVERSITY RESPONDENT
JUDGMENT OF L E. M. MUKASA-KIKONYOGO, DEPUTY CHIEF JUSTICE
This petition is filed by three Makerere Seventh Day Adventist students whom I shall refer to as the petitioners. It is brought against Makerere University (hereinafter to be referred to as the respondent or University.) The petitioners are seeking a declaration under Article 137 of the Constitution of Uganda that the respondent's policy and regulations of scheduling lectures, mandatory tests and examination on the Sabbath Day are inconsistent with and are in contravention of Articles 20, 29(1) (c), 30 and 37 of the Constitution in respect of petitioners who practise the Seventh Day Adventist Christian Faith.
The petitioners had also sought a declaration to the effect that Rule 4 (1) of the Fundamental Rights and Freedoms Rules 1992 Directions 1996 was inconsistent and in contravention of Article 137 of the Constitution but it was abandoned together with the corresponding parts of the pleadings and affidavits of both sides.
Finally the petitioners are praying for an order awarding them exemplary damages for infringement of their constitutional rights and costs of the petition.
The petition is supported by the affidavits of the three petitioners namely Dimanche Sharon, Gilphine Moreika, Nansereko Luck and in addition those deponed to by Deborah Nassanga, Fred Lulinaki, Dr. John B. Kakembo a pastor and counsellor in the Seventh Day Adventist Christian Faith and several others.
The Respondent entered appearance and put in an answer to the petition which was supported by several affidavits including that of Professor J. Ssebuwufu, the Vice Chancellor and Jane Frances Nabawanuuka, Assistant Secretary (Legal) both of the Respondent and others.
The Attorney General was duly served with the petition but apart from accepting service on 25/02/03, did nothing more. He had no representation at the hearing which proceeded in his absence.
In the petition the petitioners allege, inter alia, as follows:
"1. Your Petitioners are all adults of sound mind, and students at Makerere University. They are members of the Seventh Day Adventist Christian Church and practice (sic) their faith and religion in accordance with their beliefs and the doctrine and dictates of the Seventh Day Adventist Christian faith. They have an interest in and are affected and by the following matters being inconsistent with and in contravention of the Constitution of the Republic of Uganda, where by your Petitioners are aggrieved.
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 your Petitioners who practice the Seventh Day Adventist Christian faith), irrespective of the students' religious affiliations is inconsistent with and in contravention of Articles: 20, 29 (1) (c), 30 and 37 of the Constitution of Uganda.
The time limit of 30 days within which a Petition can be presented to this Honourable Court for interpretation of the Constitution under Article 137 of the Constitution, which is set out in Rule 4(1) of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions 1996, is inconsistent with and in contravention of Article 137 of the Constitution of Uganda.
Makerere University scheduled the taking of mandatory examinations for the subject of "Introducing Law" (for the 1st and 2nd Petitioners) and "Legal Aspects of Planning" ( for the 3rd Petitioner) on Saturday, the 25th of January 2003, which is the Sabbath Day for your Petitioners and on which day they cannot by reason of their faith and beliefs under the Seventh Day Adventist Christian Faith, take examinations. For the same reason, the 3rd Petitioner 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, your Petitioners have suffered tremendous hardship and injustice and are entitled to legal redress.
Your Petitioners state the following reasons in support of this Petition namely:
Makerere University is a Public Institution, and is obliged under Article 20 of the Constitution of Uganda to respect and uphold the inherent and fundamental rights and freedoms (which include the religious freedoms ) of the Petitioners as established under the Constitution.
The Makerere university Policy of scheduling mandatory classes, test and examinations on the Sabbath day infringes on the fundamental rights and freedoms of the Petitioners to practice their religion and manifest their Sabbath practice, and the participation in their beliefs of the Seventh Day Adventist Christian Faith as guaranteed under Article 29(1) ( C ) of the Constitution.
(iii) The effect of these polices of Makerere University of scheduling mandatory classes, tests (sic) and examinations on the Sabbath day, imposes an unconstitutional burden on your Petitioners, by virtue of their faith and undermines their constitutionally guaranteed right to Education under Article 30 of the Constitution.
(iv) University policy of scheduling classes, mandatory tests and examinations on the Sabbath day, imposes an unconstitutional burden and hardship on your Petitioners' constitutionally guaranteed right to practice, (sic) profess, maintain and promote your Petitioners' religion in community with others under Article 37 of the Constitution of Uganda.
(vii) The inflexible conduct and attitude of Makerere University with regard to your Petitioners who practice (sic) the Seventh Day Adventist Christian Faith, has occasioned severe hardship, loss and detriment to your petitioners, for which harm they are entitled to declarations, legal redress and appropriate compensation in damages.
Therefore your petitioners pray that this Honourable Court may: (a) Grant the following declarations :-
1. The Makerere university policies and regulations of scheduling lectures, mandatory tests and examinations on the Sabbath day, is inconsistent with and in contravention of Articles 20, 29(1) (c), 30 and 37 of the Constitution in the case of your Petitioners who practice (sic) the Seventh Day Adventist Christian Faith.
3. Makerere University violated the petitioners' constitutional guaranteed rights under Articles 20, 29 (1) (c), 30 and 37 of the Constitution.
(b) Grant an order of Redress that:-
1. Your Petitioners are awarded general and exemplary damages for the infringement of their Constitutional rights and Costs of this Petition."
The background of the petition is clearly spelt out in the petition reproduced above. I need not repeat it. I, therefore, propose to proceed with the evaluation of the issues framed and agreed upon by both sides which read 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 your petitioners (sic)
Whether the respondent is entitled to claim lawful derogation under Article 43 of the Constitution of Uganda.
Whether Rule 4(1) of the Fundamental Freedoms (Enforcement Procedure) Rules 1992, Directions 1996 are inconsistent with Article 137 of the Constitution of the Republic of Uganda.
However, this issue was subsequently abandoned. 1. What remedies are the petitioners entitled to"
On the first issue, in my view, the summary of the petitioners' concerns subsequently elaborated by Mr. Kakembo Katende, their learned counsel, are as stated below. Firstly the respondent as a public institution is obliged under Article 20 of the Constitution to respect and uphold the inherent and fundamental rights and freedoms which include the religious freedoms of the petitioners as established under the Constitution but which it violated.
Article 20, reads as follows:
"Fundamental rights and freedoms of the individual are inherent and not granted by the state "
Secondly, the respondent's policy and regulations complained of in the Petition infringe on the fundamental rights and freedoms of the petitioners to practise their religion and manifest their Sabbath Day Adventist Christian Faith as guaranteed under Article 29 (1) ( c ) which provides as follows:-
"Every person shall have a right to
c. Freedom to practise any religion and manifest such practice which shall include a right to belong and participate in the practices of any religious body or organisation in a manner consistent with this Constitution."
Thirdly, it was strongly submitted on behalf of the petitioners that the effect of the respondent's offensive policy and regulations impose an unconstitutional burden on the petitioners by virtue of their faith and undermine their constitutionally guaranteed right to education under Article 30 of the Constitution which states as follows:-"All persons have a right to education"
Fourthly, the petitioners insist that the offensive respondent's policy, imposes an unconstitutional burden and hardship- on their constitutionally guaranteed right to practise, profess maintain and promote their religion in community with others under Article 37 of the Constitution of Uganda which provides as follows:-
"Every person has a right as applicable, to belong to, to enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others"
Fifthly, the petitioners allege that the respondent's inflexible conduct and attitude have occasioned severe hardship, loss and detriment to them which entitles them to the declarations, and other appropriate redress including exemplary damages as stated in their petition (supra).
In his submissions, Mr. 1 Kakembo Katende, emphasised to court that the cardinal tenet of the Seventh Day Adventist Christian Faith is that believers cannot engage in any form of work on the Sabbath Day which is a blessed and sacred day to their faith. He, further, explained that the history of their belief emanates from the Bible and is discussed in the affidavit of Dr. John B.
Kakembo dated 21st February, 2003. The said Dr. Kakembo is both a pastor and an Executive Director of the Seventh Day Adventist Christian Faith. He is also a qualified PHD Theologian and also a student's counsellor. In that capacity, in paragraph 6 of his affidavit, he deponed as follows:-
"That according to the Seventh Day Adventists Christians the Sabbath is one of the ten commandments. This is spelt out in the Book of Exodus Chapter 20 verses 8-11 of the Bible (N.I.V) where it is stated that we are to remember the Sabbath by keeping it holy. In six days we are to labour and do all our work. The seventh day is a Sabbath to the Lord God on which we are to rest from our work"
A copy of the Book of Exodus chapter 20 verses 8-11 is annexed thereto as "A"
Members of the faith also believe that they would be condemned if they disobeyed that commandment apart from an emergency which to the petitioners did not extend to the respondent's policy and regulations. Disobedience leads to hell. The petitioners are, therefore, unable to attend mandatory lectures, exams or tests scheduled on the Sabbath Day as can be seen from Dr. Kakembo's affidavit in paragraph 19 of his affidavit where he states as follows:
"The Sabbath commences on Friday evening and ends on Saturday at Sundown. To ask a Seventh Day Adventist Student to sit for exams on a Sabbath, therefore, violates their freedom of religion, which fundamental freedom includes the right to observe the Sabbath according to our faith"
Relying on Constitutional Petition No. 6 of 1999 Zachary Olum and Another vs Attorney General; the Canadian Case The Queen vs Big m. Drug Mart Ltd (others intervening ) (1986) LR C. 332 and Attorney General vs Salvatori Abuki Constitutional Appeal No. 1 of 1998, Mr. Kakembo submitted that in determining a constitutional matter, the court has to consider both the purpose and the effect of the act or law in question. However, it appears to counsel that the court has to consider each one of them separately.
He conceded that the purpose of the respondent's policy is clearly articulated in paragraphs 3 and 4 of Prof. Sebuwufu's affidavit dated 21st February 2003. It explains the rationale behind the policy, which was to avail access to education to more people. However, he was not suggesting that the respondent's policy was intended to undermine or violate the petitioners' rights but it is the effect of implementing that policy that infringes other's rights. It is on that basis that the petitioners are claiming an exemption from the respondent's policy and regulations.
With regard to Article 20 of the Constitution, counsel argued that neither the state nor the university can take away any person's inalienable rights for Article 20 (2) of the Constitution provides:
"The rights and freedoms of the individual and groups enshrined in the chapter shall be respected and upheld and promoted by all organs and agencies of government and all persons"
Further counsel submitted that the respondent's policy to force the petitioners to participate in the respondent's educational programmes on Sabbath Day was unconstitutional and inconsistent with Articles 29(1) ( c) and 37 of the Constitution (supra). On Article 37 (1) (c) the petitioners' concern is restricted to the religious rights supplementary to Article 29 (1) ( c ).
Article 37 reads inter alia:-
"Every person has a right as applicable, to belong to enjoy, practice, profess.... creed or religion in the community with others"
For the meaning of "Freedom of religion" Counsel relied on the Canadian case of Queen vs Big M. Drug Mart Ltd, (Supra) at page 359 paragraphs F.G. In short he submitted that it meant the right to entertain religious beliefs as such a person chooses. It includes rights to "declare those beliefs openly and without fear or hindrance or reprisal and the right to manifest religious beliefs of worship and practice or by teaching or dissemination. But the concept means more than that"
The freedom must generally be characterised by absence of coercion and constraint. On the other hand that means that nobody can be forced to persue a course of action which otherwise he would not have taken. He cannot be taken to be acting on his own volition and cannot be said to be free.
Applying the aforesaid principles, Mr. Kakembo Katende, argued that the petitioners were entitled to believe in the dictates of their faith to which they subscribe without fear or hindrance or any kind of restriction mentioned in the Canadian Case of Queen vs Big .. (supra) In addition counsel argued that the effect of the implementation of the respondent's policy is to impede the observance of the petitioners' religious principles. The policy forces them to go against their conscience and to violate their freedom or religious beliefs, which counsel submitted was inconsistent with Articles 29 (1) ( c ) and 37 of the Constitution. He referred this court to the case of Sherbert vs Verner 374 US 398 US SC. (Vol 83 A page 1790) where it was held that if the purpose or the effect of the law was to impede the observance of one's religion or to discriminate in religions, that law would be constitutionally invalid even though the burden characterised is indirect. Although counsel conceded that the aforesaid authority was overturned it was followed in many subsequent cases. He further argued that although the petitioners had a choice, in the context of this petition it was to forego their religious convictions, which he submitted imposed an unconstitutional burden on them.
The dilemma facing the petitioners and other students or members of their faith, therefore, is that if they are to take full benefit of what is offered by the respondent, they are required to give up or forego a cardinal tenet of their religious belief that they cannot work on Sabbath Day.
On the other hand, if they were to work on the dictates of their religion and conscience they would be threatened with academic detriment and their progress and futures are affected accordingly. This, counsel argued, imposed an unconstitutional burden on the petitioners as was held in the case of Sherbet vs Verner (supra)
It is the position of the petitioners that denial of the exemption requested for is a denial by the respondent of their right to exercise their guaranted religious freedom. The only reason they suffer is because of their firm religious conviction. For the aforesaid reason, Mr. Kakembo, submitted that the petitioners were entitled to a constitutional exemption from the respondent's policy. He further relied on the case of Re Chikweche (1995) 2 LRC 93.
Mr. Kakembo also submitted there was no justification for sacrificing the rights of the minority 150 seventh Day Adventists to that of the majority population of 31,000 students. It must be conceded that the religious rights in issue are peculiar to Seventh Day Adventist Christians and they are entitled to them. As it was held in the case of Chikweche the concern of the court is not validity but sincerity which characterises the petitioners' religious convictions, which is the reason for their suffering. It appears they are not understood by the respondent. Mr. Kakembo emphasised his prayer that the objective of the petitioners is to seek exemption and accommodation from the respondent's policy but not an abolition of the policy to hold educational programmes on Saturday.
On Article 30, Mr. Kakembo, submitted that under the said Article all persons have a constitutional right to education. However, it is contended by him that informing the petitioners of the terms of admission at the time of admission means that in essence the petitioners were admitted on condition to forego their religious convictions or scruples in order to attend the University. To him this was unconstitutional and in contravention of Article 30 of The Constitution. He referred this court to The Universities and other Tertiary Institutions Act, No. 7 of 2001 Section 28 which
prohibits discrimination. For example S 28 (2) of the Act makes provisions for admission of non citizens without discrimination. The petitioners are challenging the limitation imposed by the respondent on the right to education at admission of the Seventh Day Adventist students. Their argument is that the right to education is more than a right to be admitted and gives right to enjoyment of a favourable environment in which the students can attain their educational aspiration. It must also give every individual such opportunity to enable him or her to succeed in his or her endeavour. Counsel submitted that the respondent's policy makes it unreasonably difficult and onerous for the petitioners and members of their faith to attain their educational aspiration guaranteed under Article 30 (supra)
In reply Mr. Wamala who was part of the respondent's defence team, followed the same approach adopted by Mr. Kakembo. On issue No. 1 relating to the legality and constitutionality of the respondent's policy and regulations, he agreed with Mr. Kakembo on the definition of the legal standard in the constitutional interpretation. However, he emphasised that the court has to consider both the purpose and effect together but not in isolation. Further he submitted that all provisions of the Constitution concerning an issue has to be considered. The Constitution must be looked at and read as an integrated whole. No one particular provision should destroy another but should support each other. Counsel also relied on Constitution Petition No. 6 of 1996 Zachary Olum and Others vs Attorney General (supra) In the present petition Articles 20, 29 (1) ( c), 30 and 37 should be considered jointly but not in isolation.
Further he argued that the other principle to be taken into account is the chapter on the National Objectives and Directives of the State Policy.
He submitted that the respondent's policy was formulated in accordance with the aforesaid principles. He also asked court to look at both the positive and negative effects of the policy to determine the validity of the respondent's policy. He relied on paragraph 6 of Professor Ssebuwufu's affidavit in support of the answer by the respondent which, inter alia, reads as follows:-
"As a result of the implementation of the said policy the university has been able to improve the quality of education and accommodate more students as hereunder.
number of students increased.
The university has been able to sufficiently provide University Education
the said policy has enabled University to increase its intake in respect of privately sponsored students on the day program from
1920 during 1997/1998 Academic year to 6288 This
category includes those students who are available to attend lectures during week days but do not qualify for government sponsorship.
d) As a result of the implementation of the said policy the University has increased the number and variety of courses offered at the University from 43 courses offered during the 1997/1998 Academic year to 129 to 2000/2003 Academic year
e) the policy further enabled the University to offer better
quality education by employing many better qualified lecturers.
f) University to generate more revenue from private
It was contended that the respondent's policy is in conformity with the National Objectives and Directive Principles. I agree.
Relying on the South African constitutional burden principle, it was the submission of counsel for the respondent that in determining whether a policy negatively impacts on a provision of the Constitution to the standard of reducing it to an unconstitutional burden, the test should be whether it substantially burdens religious freedom. The test should be substantial but not anything else. See Christian Education S. A. vs Minister of Education of the Government of RSA 1999 (9) BCL R 951 (SE) It was the submission of counsel for the respondent that the policy requiring utilisation by the petitioners and other students on Saturday does not constitute a substantial burden to justify granting the petitioners an exemption. The standard is the inconvenience caused. I agree.
I heard the submissions of counsel on either side and I have carefully considered the arguments advanced. I also had a careful perusal of the petition and the affidavit evidence adduced by both parties in support of the petition and answer to the petition and all documentary evidence annexed thereto and I have the following observations to make.
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. The petitioners should not have accepted the offer of admission since the terms and conditions were clear in the Freshers Joining Instructions for every academic year a copy of which was annexed as annexture A to the answer on the petition.
In paragraph 3 of Professor Ssebuwufu's affidavit, he depones as follows:-
" It is correct that it is University Ruling that university programmes including lectures and examination may run for seven days a week including Saturdays. It has also been correct that the University has been requiring students to take examinations and or attend lectures between 7.a.m and 10. a.m. on Saturdays and on any other day of the week. The said Policy was communicated to all students including the petitioners at the time of admission to the University."
Clearly, the petitioners had a choice not to join the respondent. I agree, like all persons, under Article 30 they are guaranteed right to education but it is not confined to the respondent. There are many Universities and other tertiary institutions in Uganda, including Bugema University established by the Seventh Day Adventist Church and in other countries including Kenya. The petitioners did not have to chose the respondent as it was not compulsory. Besides, University education is not compulsory. Having voluntarily joined the respondent, the petitioners cannot be heard to demand from the respondent what according to Professor P. Ssebuwufu is not affordable. In his affidavit dated 7th May 2003 in paragraph 9 - Prof. Ssebuwufu depones as follows:-
"The University cannot offer special examinations to those students who are unable to attend examinations on particular days due to religious considerations or for any other reason because such practice would create a variance in academic standards and further lead to an increase in the cost of education. The University may not be able to organize examinations within the available period and the policy of special examinations would lead to difficulties in synchronising examination results."
In the premises the petitioners should have turned down the offer of admission as they had been notified of the respondent's policy and regulations complained of.
It is correct, as observed by counsel for the petitioners, that the justification for the respondent's policy is that the respondent is a public and secular institution and as such it has no duty to accommodate some beliefs based on religious tenements. It is nowhere stated in the respondent's policy and regulations that the petitioners should give up their religious convictions and become secular. In my view, the respondent's policy is not inconsistent with Articles 20 and 30 of the Constitution. The case of Sherbert vs Verner, (supra) relied on by counsel is not relevant to this petition.
I also do not subscribe to Mr. Kakembo's submission that the respondent's policy forced the petitioners to persue a course of action which they would not have taken. They were free to participate or not in the respondent's educational programmes held on Sabbath. The respondent did not prevent them or any member of their faith to believe in the dictates of their faith to which they subscribe. In agreement with counsel for the Respondent in this petition court has to consider both the purpose and effect of the policy together. In my view, it is not true, as contended by him, that its effect was to impede observance of the petitioners' religious principles. The said policy does not force them to go against their conscience and does not violate their freedom of religious beliefs in contravention of Article 29(1) ( c) and 37 of the Constitution.
The purpose and the effect of the policy as clearly indicated by 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 deponded 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.
The respondent even gave them alternatives of taking the educational programmes when fixed on other days than Sabbath. They had that option but 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 experiencing 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 or examinations.
Further I bear in mind the affidavit evidence deponed to in the affidavit of Esther Irakunda dated 22 May 2003 in paragraph 5 (a) of her affidavit reading as follows:-
"That I attended two tutorials in my second year between 1995/96 academic year while in Makerere University that were held on two separate Sundays and I never heard a complaint from other students on the ground that Sundays was a religious prescribed as a rest day"
That, in my view, was no evidence to show that the problem of Sabbath was only peculiar to the Seventh Day Adventists students.
With regard to counsel's complaint that there was no justification to sacrifice the rights of the minority of 150 Seventh Day Adventists students to that of the majority population, the issue of sacrifice did not arise. 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 and freedoms of others or the public interest"
Human rights, hence, are not absolute but enforceable within reasonable limits. It is worthwhile 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 controverted 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 "
With regard to the suggestion for confinement, that proposal, as shown by paragraph 10 of Prof. Ssebuwufu's affidavit is not practicable. It reads:-
"Furthermore the University is not in position to implement the Makerere Seventh Day Adventists Students Associations' recommendation to confine Seventh Day Adventists students in a particular place for a specified period of time on Saturdays on which examinations are held and to offer the said examinations to such students after their Sabbath as such act may be construed as sectarian, torturous, impractical, high handed and unconstitutional. The University would also be compelled to offer the same treatment to various religious groups, e.g. Muslims, Catholics, Anglicans, Bahais, Hindus and all whose members attend the University".
In conclusion, in agreement with counsel for the respondent, the policy and regulations of the respondent did not violate the petitioners human rights under Articles 20, 29 (1) ( c), 30 and 37 of the Constitution of Uganda. They did not impose on the petitioners an unconstitutional burden by virtue of their faith. For the aforesaid reasons they did not undermine the petitioners' constitutionally guaranteed right to education under Article 30 (supra).
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 practising, or believing or participating in any religious activities. The policy did not hinder any promotion of their creed or religion in Community with others under Article 37 (supra).
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 view of finding a possible solution to the respondents' 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. As it was rightly pointed out by counsel for the respondent, the provisions of the Constitution allegedly violated by the respondent, must be considered as whole. The petitioners' rights had to 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 religious principles. There was no threat or academic detriment to the petitioners as suggested by their counsel. If any it was self imposed because the petitioners had a choice it was up to them to take the offer or reject it. In my view, the petitioners have no justification to challenge the respondent's terms and conditions of admission. As an institution, the respondent must have Regulations and Terms of Admission if it is to maintain a high academic standard and discipline, which in my opinion, are the key to success.
I agree with counsel for the respondent that the policy requiring utilisation by the petitioners and other students on a Saturday does not constitute a substantial unconstitutional burden to justify granting the petitioners the exemption prayed for. In the result I find that there was no contravention of the petitioners' rights under Articles 20, 29 (1) ( c) 30 and 37. On that finding alone the petition must fail.
There is no need for me to consider the remaining two issues on derogation and remedies.
I would dismiss the petition and order each party to bear its own costs.
Since, the other four justices on the coram have a similar view, the petition is dismissed. No order is made as to costs.
Dated at Kampala this 24th day of September 2003
L. E. M. MUKASA-KIKONOGO
DEPUTY CHIEF JUSTICE
JUDGMENT OF TWINOMUJUNI, JA
The petitioners, all of whom are students of Makerere University, petitioned against the University for declarations that:
"(a) 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(l)(c), 30 and 37 of the Constitution in the case of your petitioners who practice the Seventh Day Adventist christian faith. (b)The time limitation of 30 days introduced under rule 4(1) of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions 1996 is in contravention of article 137 of the Constitution.
(c)Makerere University violated the petitioners' constitutionally guaranteed rights under articles 20, 29(l)(c), 30 and 37 of the Constitution.
(d)The respondent pays general and exemplary damages for infringement of the petitioners constitutional rights and the costs of the petition."
The petition is supported by affidavits of the three petitioners and several other witnesses who practice the Seventh Day Adventist christian faith, to which the petitioners subscribe. The respondent filed an answer to the petition supported by affidavits of a number of employees of the University in which they oppose the petition and demand that it be dismissed with costs.
Makerere University is the oldest and probably the largest University in East Africa. It is currently operating under the authority of the Universities and Other Tertiary Institutions Act (Act 7 of 2001). Under the authority of that Act, it has made policies and regulations one of which is introduced to its students as follows: -
"Students are informed that the University Progammes may run seven days a week. Since the University has students and members of staff from various religious 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 respond to the academic work in your academic unit even if it takes place on the respective days of worship."
This information is printed in bold letters in a document entitled:
"FRESHERS' JOINING INSTRUCTIONS" issued to all new students to the University by the Academic Registrar. On the front of the document, there is printed a request stating: "NOTE: PLEASE DO READ THIS DOCUMENT AND UNDERSTAND ITS CONTENTS VERY WELL."
The petitioners are all members of the Seventh Day Adventist christian faith.
The Cardinal tenet of their faith is based on the forth Commandment of God
to be found in EXODUS 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 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."
The Seventh Day Adventists further believe that the Sabbath is a day "of rest, worship, and ministry in harmony with the teaching and practice of Jesus, the Lord of Sabbath. The Sabbath is a day of delightful communication with God and one another. It is a symbol of our redemption in Christ, a sign of our sanctification, a token of our allegence and a foretaste of our external future in God's Kingdom. The Sabbath is God's perpetual sign of his internal covenant between Him and His people. Joyful observance of this holy time from evening to evening, sunset to sunset, is a celebration of God's creative and redemptive acts."
The petitioners contend that as a result of the University regulation quoted above, they are required to attend classes and take mandatory tests and examinations on any day of the week, including the Sabbath Day which is contrary to their beliefs and contravenes articles 20, 29(l)(c), 30 and 37 of the Constitution of the Republic of Uganda. Hence the prayer that the regulation be declared null and void.
For sometime now, Makerere University Seventh Day Association (MUSDAA), in which the petitioners are members, has been engaged in negotiations with the University with a view to finding a solution to this problem. In July 2001, the Association wrote to the Vice Chancellor follows:-
THE VICE CHANCELLOR, MAKERERE UNIVERSITY, P.O. BOX 7062 KAMPALA.
RE: REQUEST FOR AN ADDOMODATIVE ACADEMIC SHCEDULE FOR SEVENTH-DAY ADVENTIST STUDENTS.
We the S.D.A. students are members of the aforementioned association of Makerere University.
This association is based on the doctrines of the Seventh-Day Adventist church, which are Biblically founded and bear Biblical authority and authenticity. These doctrines include inter alia the observance of the Sabbath day, which is generally known as Saturday, through religious convocation and not doing secular work, which includes attending lectures, tests and examinations on the day herein mentioned.
In this we accord it all its divine attributes of blessing, rest and sanctity, for God rested on it, sanctified it and blessed it, and bade human beings do the same. The doctrines are also recognised under article 29(l)(c) of the 1995 Constitution of the Republic of Uganda, which states that, "Every person shall have a right to freedom to practice any religion and manifest such practice which shall include the right to belong and participate in the practices of any religious body or organisation in a manner consistent with this constitution." And the doctrines of the church are consistent with the constitution [that is why the Seventh-Day Adventist church is recognised by the government of Uganda]. We would like to bring it to your attention that our rights that are provided for under the constitution, are being infringed upon in that the University academic programme does not accommodate us, Seventh-Day Adventist students in that examinations, tests and lectures are scheduled on Saturdays and we end up missing and retaking which has proved detrimental to our subject grades, Grade Point Averages (G.P.A.s), and Cumulative Grade Point Averages 9C.G.P.A.s). Some of us have as a result been suspended, some made to study for more years than necessary, some forced to withdraw, while others have been expelled all on religious grounds. More over the University regulations are forcing us to attend these lectures, tests and examinations on Sabbath against our consciences and beliefs, contrary to article 29(l)(b) of The 1995 Constitution of Uganda, which inter alia provides for academic freedom.
We therefore recommend:
That the University academic programmes be formulated/structured in such a way as to accommodate Seventh-Day Adventist students, by scheduling tests and examinations, which affect Seventh-Day Adventist students, on Sabbath (Saturdays); And alternatively, if they are scheduled for Sabbath,
That special tests and examinations be set and given to Seventh-Day Adventist students on days other than the Sabbath day (Saturday)