Freedom of Worship and Belief: Constitutionality of Universitys Rule (& Practices) hich re!

uire "tudents to attend lectures and do tests and e#ams on "aturday and "unday Posted $y %a$a "hadrac& ' "aturday' %uly ()' (*)( +,- R-PUB./C 0F U12342 /3 +,- "UPR-5- C0UR+ 0F U12342 2+ 5-310 C0R25: 0406/' C%' 04-R' +"-60060' 62R060R2' 5U.-312' 6237-/,25B2 and 62+UR--B-' %%"C C03"+/+U+/032. 2PP-2. 30 ( 0F (**8 )9 4imanche "haron (9 5o&era 1ilphine :9 3ansere&o .uc& (2ppellants) ;ersus 5a&erere University (Respondent)

[Appeal from the decision of the Constitutional Court (Mukasa Kikonyogo, DCJ, Mpagi Bahigeine, Berko, T inomu!uni, and Kitum"a JJA# dated $%th &eptem"er $''( in Constitutional )etition *o + of $''(,-

August

2006

%U415-3+ 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 Se enth !ay Ad entist Church to attend scheduled lectures and sit tests and e"aminations 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 contra ened the appellant's freedom of religion and the right to education as guaranteed by the Constitution of $ganda#

%ac&ground

to

the

Appeal'

The bac&ground to this appeal is as follows' The appellants were members of the Se enth !ay Ad entist Church who were at the material time students at the (a&erere $ni ersity) the respondent# According to their religious beliefs) the Sabbath !ay *Saturday+ is a holy day of rest and worship and therefore no wor& including attending lectures and sitting tests and e"aminations) is permitted# Since 1,,-) the respondent had initiated a policy aimed at increasing access to $ni ersity education which had led to large increase in number of students admitted and introduction of a ariety of courses of study conducted both during day and e ening as well as e"ternal programmes# !ue to this policy) the respondent made regulations contained in the .reshers /oining 0nstructions issued to 1oining students) in which the students) including the appellants) were informed that the $ni ersity programmes might run for se en days a wee&# They were also informed that since the $ni ersity had students and members of staff from arious religious bac&grounds) the $ni ersity might not meet the interests of a particular group) especially in the crucial areas of attendance of lectures and e"aminations# The students were urged to respond to their academic wor& in the academic unit e en if it too& place in their respecti e days of worship# The appellants found difficulties in attending lectures and sitting tests and e"aminations on Sabbath day) and missed some of the programmes conducted on Saturdays) delaying the completion of their courses and e en 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 e"aminations on days other than the Sabbath day or in the alternati e) that special e"aminations be set for those who miss the tests or e"aminations held on Saturdays# They also suggested that they could be confined on Saturdays while other students were sitting e"aminations) so that they could sit the e"aminations later between 6#20 and ,#20 p#m# The respondent was unable to accept this request due to the fact that it was a secular $ni ersity which could not cater for particular religious groups) gi en its limited physical facilities and huge financial costs in ol ed# The respondent indicated that it was already e"tending accommodation to the appellants by allowing them to reta&e the programmes they missed) including e"aminations when they were ne"t offered# The appellants were dissatisfied with the response of the respondent# They brought a petition in the Constitutional Court under Article 12of the Constitution) see&ing mainly a declaration that the $ni ersity's policies and regulations of scheduling lectures) mandatory tests and e"aminations on the Sabbath !ay are inconsistent and are in contra ention of Articles 20) 2, *1+ *c+) 20 and 2- of the Constitution) in respect of the appellants who profess the Se enth !ay Ad entist .aith# 0n the petition) the appellants alleged that the (a&erere $ni ersity policies and regulations made under the authority of the $ni ersity and 3ther Tertiary 0nstitutions Act *Act - of 2001+) which policies and regulations require students to attend classes) and ta&e mandatory tests and e"aminations on any day of the wee& *including the Sabbath !ay in the case of the appellants

who belie e in the Se enth !ay Ad entist Christian .aith+) irrespecti e of the students' religious affiliations are inconsistent with and in contra ention of Articles' 20) 2,*1+ *c+) 20 and 2- of the Constitution of $ganda# They alleged further that (a&erere $ni ersity scheduled the ta&ing of mandatory e"aminations for the sub1ect of '0ntroducing 4aw' *for the 1st and 2nd appellants+ and '4egal Aspects of 5lanning' *for the 2rd appellant+ on Saturday) 26th /anuary 2002) which was their Sabbath !ay and on which day they could not by reason of their faith and beliefs under the Se enth !ay Ad entist Christian .aith) ta&e e"aminations# .or the same reason) the 2rd appellant was forced to miss a scheduled e"amination in the course of 'Ci il 5rocedure' in 2002 and therefore could not graduate) and was on this basis required to repeat the year# %y reason of the foregoing) the appellants complained that they had suffered tremendous hardship and in1ustice and were entitled to legal redress# The appellants contended that (a&erere $ni ersity is a public institution) and is obliged under Article 20 of the Constitution of $ganda 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 e"aminations on the Sabbath !ay 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 Se enth !ay Ad entist Christian .aith) as guaranteed under Article 2,*1+ *c+ of the Constitution# The appellants further contended that the effect of the policies of (a&erere $ni ersity of scheduling mandatory classes) tests and e"aminations on the Sabbath !ay) imposed an unconstitutional burden on them) by irtue of their faith and undermined their constitutionally guaranteed right to education under Article 20 of the Constitution# .urthermore) it was their contention that the $ni ersity policy of scheduling classes) mandatory tests and e"aminations on the Sabbath !ay) 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 2- of the Constitution of $ganda# 4astly) the appellants contended that the infle"ible conduct and attitude of the respondent with regard to them had occasioned se ere 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 (a&erere $ni ersity policies and regulations of scheduling lectures) mandatory tests and e"aminations on the Sabbath !ay) are inconsistent with and in contra ention of Articles 20) 2,*1+*c+) 20 and 2- of the Constitution in the case of your 5etitioners who practise the Se enth !ay Ad entist Christian .aith#

*2+ (a&erere $ni ersity iolated the petitioners' constitutionally guaranteed rights under Articles 20) 2,*1+*c+) 20 and 2of the Constitution# They also prayed for the award of general and e"emplary damages for the infringement of their Constitutional rights and costs of the petition# The petition was supported by the affida its of the three appellants and three other members of the Se enth !ay Ad entist .aith# The respondent filed an answer to the petition and admitted requiring students to attend classes) tests and e"aminations on any day of the wee&) but denied that the said requirement was inconsistent with Articles 20) 2,*1+ *c+ 20) and 2- of the Constitution# The respondent further denied that the scheduling of classes) tests and e"aminations 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 sub1ect to the /oining 0nstructions that the $ni ersity programmes might run se en days a wee&) and since the $ni ersity had students and staff from arious bac&grounds) the $ni ersity might not meet the interests of a particular group) particularly in the crucial areas of attendance of lectures or e"aminations# The answer to the petition was supported by se eral affida its including) one by the 7ice Chancellor of the $ni ersity) 5rofessor /ohn Ssebuwufu# At the hearing of the petition) in the Constitutional Court the two main issues were framed as follows' 1# 8hether the respondent's regulations are inconsistent with and in contra ention of Articles 20) 2,*1+ *c+) 20 and 2- of the Constitution of $ganda in the case of the 5etitioners# 2# 8hether the respondent is entitled to claim a lawful derogation under Article 92 of the Constitution of $ganda# The Constitutional Court answered both issues in the negati e) and declined to grant the declarations sought# The appellants were dissatisfied with that decision and appealed to this Court on the following si" grounds' 1# That the learned /ustices of the Court of Appeal : Constitutional Court erred in law and fact when they held that the ;espondent's policies and regulations in issue are not inconsistent with Articles 20 and 20 of the Constitution and that the ;espondent was 1ustified in requiring the appellants to sit e"aminations on their Sabbath# 2# That the learned /ustices of the Constitutional Court:Court of Appeal erred in law and in fact and misdirected themsel es on questions of law and fact when they held that the ;espondent's policy and regulations that compelled the appellants to sit e"ams on their Sabbath or any day of the wee& between -#00 a#m# in the morning and 10#00 p#m# at night is not inconsistent with and did not iolate the Appellants human rights under Articles 20) 2,*1+ *c+) 20 and 2- of the Constitution#

2# That the learned /ustices of the Constitutional Court erred in law when they held that the .reshers /oining 0nstructions of the ;espondents notifying the Appellants on 1oining the ;espondent $ni ersity that programmes would run se en days a wee& and that the ;espondent would not be obliged to respect any day of worship was sufficient notice that absol ed the ;espondent of any further responsibility to uphold the appellants fundamental tenet of religion in respect of &eeping a Sabbath on Saturdays when required to sit e"ams on that day and that the Appellants should ha e turned down the offer to 1oin the ;espondent at the beginning# 9# That the learned /ustices of the Constitutional Court erred in law and in fact when they held that the policy of the ;espondent requiring students to sit e"ams on the Sabbath irrespecti e of their religion) did not gi e rise to an unconstitutional burden on the Appellants that iolated their freedom of religion by irtue of a fundamental tenet of the Ad entist Christian .aith# 6# The Appellants shall demonstrate that the learned /ustices of the Constitutional Court se erally misdirected themsel es on matters of law) procedure and fact when they substantially found that there was no inconsistency in the Appellants petition:case with Articles 20) 2,) 20 and 2- of the Constitution) there being no iolation of any rights therein and the ;espondent therefore did not ha e the onus of pro ing 1ustifiable derogation from any rights of the Appellants# 6# The learned <onourable /ustices of the Court of Appeal failed to properly e aluate the e idence and therefore erroneously found that accommodating Se enth !ay Ad entist Students on the Sabbath !ay issue would impair or ad ersely 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 (r# Christopher (adrama assisted by (r# .redric& Sentomero and (r# =subuga Ssempebwa# The ;espondent was represented by (r# !ennis 8amala# (r# (adrama for the appellants) argued grounds 2 and 9 together) and rest of the grounds separately# <e argued ground 6 first) which dealt with the onus of pro ing 1ustifiable derogation under Article 92 of the Constitution# 0 propose to deal with grounds 1)2)2)9 and 6 first and handle ground 6 last# 0n his submissions before us on ground 6) (r# (adrama) learned counsel for the appellants) contended that the Constitutional Court erred in holding that the respondent did not ha e the burden of pro ing that the infringement of the appellants' rights was demonstrably 1ustified in a free and democratic society# Counsel argued that once the appellants had pro ed infringement of their rights) the burden shifted on to the respondent to establish a lawful derogation# <e further submitted that the burden of proof is higher than in an ordinary ci il case# <e relied on the decision of ; 7 %ig ( !rug (art 4td *1,>6+ 1> !4; 221) ; 7 3a&es *1,>-+ 4;C *Const#+ 9--) and Charles 3nyango 3bbo

Another

Attorney

@eneral)

Const#

App

=o

of

2002

SC#

(r# 8amala) for the respondent) submitted that Article 92 pro ides a limitation on rights and freedoms based on public interest# <e contended that their obser ance of the Sabbath !ay would pre1udice the public interest# <e cited the case of ; 7 3a&es *supra+ and Charles 3nyango 3bbo *supra+ as setting out the criteria for determining what limitations are reasonably 1ustifiable in a free and democratic society# 4earned counsel for the respondent also submitted that the respondent had pro ided sufficient accommodation for the appellants) relying on the affida it of 5rof# Ssebuwufu) 7ice Chancellor of the respondent# <e cited the decisions in Commission Scolaire ;egionale !e Chamblay s %er ege in *1,,9+ 2 SC; 62, and Central 3&anagen Scarel !istrict =o 22 s ;enand *1,,2+ 2 SC; ,-0 in support of his submissions# 0n his submissions on ground one) (r# (adrama) argued that the Constitutional Court erred in holding that the respondent's actions did not contra ene the Constitution# <e 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# 4earned counsel criticiAed the respondent's policy of requiring students to postpone e"aminations 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 iolated# ;eferring to the letter from the 7ice Chancellor to the Se enth !ay Ad entist Church) (r# (adrama submitted that while it is correct to ta&e into account the policy of the respondent) it was necessary to consider both its purpose and effect# 0t was his contention that e en if there is a alid purpose) if the effect is ad erse) the infringement would be held to be unconstitutional# 4earned counsel cited the decisions in the Bueen) s %ig ( !rug (art 4td *others 0nter ening *1,>6+ 4;C *Const#+ 222 and ;e Chi&weche *1,,6+ 2 4;C ,2 and Sherbet s 7erner 2-9 $S 2,>) in support of his submission# 0n respect of ground 2) (r# (adrama argued that the .reshers /oining 0nstructions ne er amounted to a wai er or estoppel# <e contended that there is no estoppel against a fundamental right and relied on the decision in Tellis and 3thers s %ombay (unicipal Corporation and 3thers *1,>-+ 4;C 26# 0t was his submission that in order for an action to amount to a wai er) the wai er must be as free and oluntary as possible# 3n grounds 2 and 9) learned counsel for the appellants submitted that the /ustices of the Constitutional Court erred in holding that gi ing the appellants an accommodation on Saturday would impose unbearable burden on the respondent# 0t was his contention that there was no e idence to support this finding# <e argued that there were other options li&e sitting for e"amination in the e ening of Saturday which was not considered by the Constitutional Court# .inally) in arguing ground 6) (r# (adrama submitted that the Constitutional Court failed to e aluate the e idence correctly# <e contended that there was no e idence to support the finding that gi ing the appellants an accommodation on Saturdays li&e sitting e"aminations in the

e ening

would

impose

an

unbearable

burden

on

the

respondent#

0n reply) (r# 8amala for the respondent submitted that the si" grounds of appeal could be summariAed under the two issues 0 ha e already stated abo e# 4earned counsel pointed out that the appellants had narrowed down their complaint in the grounds of appeal to attending e"aminations) and ha e left out attendance of wee&ly tests which had been included in the petition# (r# 8amala's first submission was that not e ery infringement of a human right constitutes a iolation of the Constitution# 0t was his contention that the test is whether there is substantial iolation of the petitioners' right# <e relied on the decision in Syndicat de 4enseignement de Champlain CS; !e Chambly C %erge ia *1,,9+ 2 ;CS 626# <e submitted that the appellants did not adduce any e idence to show that the alleged iolation was substantial# <e referred to the affida it of 5rof# Ssebuwufu where he stated that e"aminations were held within two wee&s and each e"amination was held for three hours and contended that if the appellants are required to attend e"aminations for only three hours) the infringement is not substantial# Secondly) (r# 8amala submitted that the nature of the accommodation the respondent e"tended to the appellants was to reta&e the e"aminations after one year# <e contended that the appellants had to pro e 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+# (r# 8amala referred to the affida it of (s# =a&abango which e"plained the e"ceptions to the Sabbath rule# <e also referred to C"odus) Chap# 20'> 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 loo& at the alidity but the sincerity of their claim# Thirdly) (r# 8amala contended that by signing the .reshers' 0nstructions) the appellants wai ed their Constitutional rights and cannot be seen to complain now# <e cited the Syndicat Case *supra+ which lays down the tests to be applied in determining the question of wai er) which he conceded are not settled# The fourth argument was that Article 2,*1+ *c+ is not absolute and is limited by Article 92 which pro ides that no person should pre1udice the rights of others or the public interest# (r# 8amala relied on the affida its of 5rof# Ssebuwufu and the 5resident of the Students' @uild which demonstrated the li&ely pre1udice to other students if the demands of the appellants were granted# <e also relied on the =ational 3b1ecti es and !irecti e 5rinciples of State 5olicy) in the Constitution) 3b1ecti e =o 1> *2+) which states that the State should gi e e ery person opportunity to attain the highest standards of education) and the $ni ersity and Tertiary 0nstitutions Act which has the ob1ecti e of affording all students the right to higher education# %efore 0 consider these submissions 0 propose to outline the rele ant Constitutional pro isions) some general principles of Constitutional interpretation) the importance of Sabbath to the Se enth !ay Ad entist .aith) and the respondent's policy and regulations#

;ele ant

Constitutional

5ro isions'

.reedom of religion is guaranteed by Article 2,*1+ *c+ of the Constitution which pro ides) '*1+ C ery person shall ha e the right to

2# freedom to practice any religion and (anifest such practice which shall include the right to belong to and participate in the practices of any religious body or organiAation in a manner consistent with this Constitution#' This right is reinforced by Article 2which pro ides)

'C ery person has a right as applicable to belong to) en1oy) practice) profess) maintain and promote any culture) cultural institution) language) tradition) creed or religion in community with others#' The Constitution also in Article - which states) '$ganda shall not adopt a state religion#' The right to education is pro ided for under Article 20) which states that) 'All persons ha e a right to education#' The Constitution pro ides 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' D*1+ .undamental rights and freedoms of the indi idual are inherent and not granted by the State# *2+ The rights and freedoms of the indi idual and groups enshrines in this Constitution shall be respected) upheld and promoted by all organs and agencies of the @o ernment) and by all personsD The Constitution pro ides for a general limitation on fundamental rights and freedoms under Article 92 in these terms' D*1+ 0n the en1oyment of the rights and freedoms prescribed in this chapter) no person shall pre1udice the fundamental or other human rights and freedoms of others or the public interest# 2+ 1# 2# detention 5ublic interest under this political without article shall not permit persecutionE trialE

2# any limitation of the en1oyment of the rights and freedom prescribed by this chapter beyond what is acceptable in a free and democratic society) or what is pro ided in this Constitution#D $nder Article 2) the Constitution is the Supreme 4aw of $ganda and 'if any other law or custom is inconsistent with any of its pro isions) the Constitution shall pre ail and that other law or custom shall) to the e"tent of the inconsistency) be oid#' $nder Article 60 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 organisation may bring an action against the iolation of another person's or group's human rights# Any person has a right to petition the Constitution Court for determination of any question relating to the interpretation of the Constitution under Article 12-*2+ which pro ides) D*2+ A person who alleges that

1# an Act of 5arliament or any other law or anything in or done under the authority of any law) or 2# any act or omission by any person or authority

is inconsistent with or in contra ention of a pro ision of this Constitution may petition the Constitutional Court for a declaration to that effect) and for redress where appropriate#D 0t is a wellFestablished principle of constitutional interpretation that a broad and liberal spirit is required for its interpretation# 0t is essential that a constitution is not interpreted in a narrow and legalistic way but generously) and purposi ely) so as to gi e effect to its spirit) and this is particularly true of those pro isions which are concerned with the protection of constitutional rights# See ; # %ig (# !rug (art 4td# *1,>6+1> !4; 221# There are also ample authorities for the proposition that a constitution should be interpreted as an integrated whole so that no single pro ision of the Constitution is segregated from others and considered alone) but that all pro isions bearing upon a particular sub1ect are brought into iew and to be interpreted so as to achie e the greater purpose of the constitution# See South !o&ata 7# =orth Caroline 1,2 $S 26>) 1,90 99> at 966# 0mportance of Sabbath to the Se enth !ay Ad entist .aith'

According to the faith of the Se enth !ay Ad entist Christians) the obser ance of the Sabbath is one of the Ten Commandments# This is spelt out in the <oly %ible in the %oo& of C"odus) Chapter 20 erses >F11 as follows' D;emember the Sabbath !ay by &eeping it holy# Si" days you shall labour and do all your wor& but the Se enth !ay is a Sabbath to the 4ord your @od# 3n it you shall not do any wor&) neither

you) nor your son or daughter nor your manFser ant nor your mainFser ant nor your animals nor the alien within your gates# .or in si" days the 4ord made the hea ens and the earth) the sea) and all that is in them) but he rested on the se enth day# Therefore the 4ord blessed the Sabbath !ay and made it holy#D According to the affida it sworn by !r# /ohn %# Ga&embo) the C"ecuti e Secretary to the Se enth !ay Ad entist Church) $ganda $nion) the Sabbath obser ance is one of fundamental beliefs of the Se enth !ay Ad entist Church# 0n a te"t boo& entitled) 8hat the Se enth !ay Ad entist %elie e where the teaching of the Sabbath is contained in Chapter 1, at pages 296F 266) it is stated that the Sabbath is central to their worship# 0t is a memorial of creation because @od rested and was refreshed on the Se enth !ay *C"odus' 21'1-+ @od also blessed the Sabbath and sanctified it# 8ith regard to obser ance of the Sabbath) the boo& states at page 262)

'To remember the Sabbath !ay) to &eep it holy *C"#20'>+# 8e must thin& of the Sabbath throughout the wee& and ma&e the preparations necessary to obser e it in a manner pleasing to @od# 8e should be careful not to so e"haust our energies during the wee& that we cannot engage in <is Ser ice on the Sabbath# %ecause the Sabbath is a day of special communion with @od in which we are in ited to 1oyously celebrate <is gracious acti ities in creation and redemption) it is important that we a oid anything that tends to diminish its sacred atmosphere# The %ible specifies that on the Sabbath we should cease our secular wor& *C"#20'1>+) a oiding all wor& done to earn a li ing and all business transactions *=eh#12'16F22+#' The Sabbath begins at sunset on .riday e ening and ends at sunset Saturday e ening *See @en#1'6+ Scripture calls the day before Sabbath *.riday+ 'the preparation day' '*(ar&E 16'92+' a day to prepare for the Sabbath so that nothing will spoil its sacredness# 3n this day those who ma&e the family's meals should prepare food for the Sabbath so that during its sacred hours they also rest from their labours *See C" 16'22E =um 11'1>+# Twinomu1uni /A questioned the sincerity of the claim by the appellants that attending lectures or e"aminations on the Sabbath was not sincere) in iew of /esus teachings contained in (ar& 2'22 where he said that the Sabbath was made for man and not man for Sabbath) and (athew 12'1F2 where /esus said) '0t is lawful to do good on the Sabbath#' <owe er) the ma1ority of the /ustices of the Constitutional Court did not question the appellants' sincerity) and 0 agree with them because religion is a matter of faith# 0n ;e Chic&eche *1,,6+ 2 4;C ,2) it was held by the Supreme Court of Himbabwe that freedom of conscience and religion had to be broadly construed to e"tend to conscientiously held beliefs whether grounded in religion or secular morality# The wearing of dreadloc&s was symbolic e"pression of the beliefs of ;astafarianism which had the status of a religion in the wider and nonFtechnical sense) or in any e ent was a system founded on personal morality# The Court was not concerned with alidity or attraction of ;astafarian 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 dreadloc&s fell within the protection of freedom of conscience

afforded

by

S#1,

*1+

of

the

Constitution#

Therefore) the refusal by the Court to permit the applicant to ta&e 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# <e 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 1udge's ruling iolated his constitutional right to freedom of religion under S#1, *1+ see ; 7 ( !rug (art 4td *1,>6+ 4;C Const# 222 at p 26,# The Court cited the dictum of !ic&son C/ in the Canadian Case of ;7 %ig ( !rug (art 4td *supra+ at p#26,) in which he stated' DThe 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#D 4ater at p#266 he added)

'C ery indi idual is free to hold'### whate er religious beliefs by his or her conscience dictates pro ided inter alia) only such manifestations do not in1ure his or her neighbours or their parallel rights to hold and manifest beliefs on opinions of their own#' !r / = 5andy writing on the effect of Article 26 *1+ of the Constitution of 0ndia in his boo& entitled) The Constitution of 0ndia) p#1,states' D;eligion is a matter of faith with indi iduals or communities and it is not necessarily theistic# A religion has its basis in a system of beliefs as conclusi e to their spiritual wellbeing 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 obser ations) ceremonies and modes of worship which are regarded as integral parts of religion) and those forms and obser ances might e"tend e en to matters of food and dress# ;eligion is thus essentially a matter of personal faith and belief# C ery person has the right not only to entertain such religious belief and ideas as may be appro ed by his 1udgment or conscience but also to e"hibit his belief and ideas by such o ert acts by his religion# *Cited in ;e Chi&weche *supra+ 5age ,, at 100+#D ;espondents' 5olicy and ;egulations'

Cach academic year the respondent issues to students admitted to ta&e arious courses) a document &nown as .reshers /oining 0nstructions# 0n the 1,,,:2000 and 2000:2001 academic years) the appellants recei ed a similar document in which it was stated in bold letters' 'Students are informed that $ni ersity 5rogrammes may run se en days a wee&# Since the $ni ersity has students and members of staff from arious bac&grounds the $ni ersity may not meet the interests of a particular group) particularly in the crucial areas of attendance of lectures

and:or e"aminations# Iou are therefore urged to respondent to the academic wor& in your Academic $nit e en if it ta&es place on the respecti e days of worship' The bac&ground to policy and regulations of the respondent were e"plained in a letter dated /uly 12) 2000 addressed to !r /ohn % Ga&embo) the C"ecuti e Secretary of the Se enth !ay Ad entist Church) $ganda $nion) by 5rof# /ohn Ssebuwufu) the then 7ice Chancellor of the respondent $ni ersity# The body of the letter reads' ;C' SC7C=T< !AI A!7C=T0ST ST$!C=TS A=! ACA!C(0C ACT070T0CS 3= SAT$;!AIS Than& you ery much for your dated /une 1>) 2002 regarding scheduling of e"aminations on Saturday# 5rior to 1,,-) the $ni ersity authorities used to try ery hard to ensure that e"aminations were not scheduled at times) or on days of worship for the arious religious denominations# C en then) in a few academic units) for e"ample) in the faculty of (edicine) tests and some clinicals had to be conducted on Saturdays and Sundays purely because of the nature of such academic programmes# The $ni ersity has since 1,,- witnessed many positi e de elopments including a big increase in the number of students admitted and the introduction on a wide ariety of courses and programmes of study# The $ni ersity now runs not only day classes but also afternoon) e"ternal and e ening classes# 8ith such a comple" system) many practice) norms and patterns of the $ni ersity life ha e had to change to suit the new circumstances and realities in which the $ni ersity has to operate# The $ni ersity Senate and (anagement ha e) therefore) agreed that whilst indi idual religious beliefs ha e to be respected) academic acti ities can be scheduled on any or all the se en days of the wee&# The $ni ersity Senate and (anagement ha e also agreed that academic acti ities can be schedule from -#00 a#m# to 10#00 p#m# on any day# 0f for religious or any other reason a student is unable to study or sit for e"aminations) he:she is free to request to withdraw from the $ni ersity or to reta&e a particular course when such a course would be offered again# $nder the Semester which the $ni ersity now operates) special or supplementary e"aminations are not administered# 0n the circumstances) any Se enth !ay Ad entist Student who may not ha e sat for a particular e"amination) may apply to the respecti e !ean:!irector to reta&e the course for such e"amination when it will be ne"t offered again# 3n its part) the $ni ersity (anagement will continue to respect indi idual 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 $ni ersity so that in the end D 8e %uild for the .uture#D 0n his affida it in support of the answer to the petition) 5rof# Ssebuwufu e"plained the ob1ecti es of the policy and regulations) their effect) the efforts to accommodate the demands of the

appellants) and the reasons why the appellants could not be e"empted from the academic programmes conducted on the Sabbath# <e e"plained that the policy was adopted ta&ing into account the secular nature of the $ni ersity with di erse religious bac&grounds and with an attempt to ma&e the $ni ersity education accessible to a large student population# The policy had been communicated to the students including the petitioners) at the time of admission# 5rof# Ssebuwufu also e"plained that the effect of the policy was to increase the number of go ernment sponsored students) pro ide education to a large number of e ening) e"ternal or pri ate students who could not attend day programmes due to their schedule of wor&# As a result of the policy the number of courses offered by the $ni ersity has increased) and the $ni ersity had been able to generate more re enue from pri ate students to impro e buildings and infrastructure to accommodate more students) and to recruit and retain more s&illed staff# The 7ice Chancellor e"plained further in his affida it the scope of accommodation e"tended to the appellants which includedF J change of courses and sub1ects in light of pro ided timetablesE

J reta&ing of courses or e"aminations when unable to sit for e"aminations on wee&endsE J attending lectures or tutorials on other days with students of different programmes held# 5rof# Ssebuwufu stated that the $ni ersity could not offer special e"aminations for those unable to attend e"aminations on particular days due to religious considerations or other reasons because such a practice would create a ariance in academic standards and would also increase the cost of education# 0t was also not possible to confine Se enth !ay Ad entist Students in a particular place on Saturdays and offer them e"aminations after Sabbath as this would be construed as sectarianism) impractical and unconstitutional# 3ther religious groups could also demand to be similarly treated# The difficulties which would be e"perienced by the $ni ersity if it agreed to pro ide the additional accommodation requested were stated by 5rof# Ssebuwufu to include' J J ;eduction ;eduction in in the the courses number offered of for students e ening admitted# programmes#

J 5rolonging duration of certain courses leading to increase in cost of education# J 0nability to employ adequate number of qualified lecturers who can only teach on wee&ends# J 0nability to meet demands by staff for high wages which are subsidiAed by resources generated by fees from pri ate students# J Substantial reduction in re enue leading to decrease in student inta&e#

J $ni ersity would be compelled to reschedule lectures) tests and e"aminations in respect of arious religious groups li&e Catholics) Anglicans) %ahais) <indus) (oonies) etc# Constitutionality of the Respondent<s Policies and Re=ulations:

The appellants complained that the /ustices of the Constitutional Court erred in holding that the respondent's policies and regulations in issue were not inconsistent with articles 20 and 20 of the Constitution and the respond was 1ustified in requiring the appellants to sit e"aminations on their Sabbath# They also complained that the /ustices of the Constitutional Court misdirected themsel es when they found that the respondent's policy and regulations were not inconsistent with and did not iolate the appellant's human rights under Articles 20) 2,*1+ *c+ 20 and 2- of the Constitution# 0t will be recalled that Article 20 imposes a duty on all organs and agencies of the go ernment and all persons to respect uphold and promote the fundamental rights and freedoms of the indi idual and groups enshrined in the Constitution# Article 20 guarantees the right of education to all persons# 0n dealing with the issue of religious freedom) (u&asa Gi&onyogo !C/ said) D0t is correct as obser ed by counsel for the petitioners that the 1ustification for the respondents is a public and secular institution and as such it has no duty to accommodate some beliefs based on religious tenements# 0t is nowhere stated in the respondents policy and regulations that the petitioner should gi e up their religious con ictions and became secular# 0n my iew) the respondents' policy is not inconsistent with Articles 20 and 20 of the Constitution# The case of Sherbert s 7erner *supra+ relied on by counsel is not rele ant to this petition#D The learned !eputy Chief /ustice then held that the appellants were free to participate or not participate in the respondent's educational programmes held on Sabbath) and were not pre ented from belie ing in and practising their faith# Therefore) the said policy did not force the appellants to go against their conscience and did not iolate their religious freedom# The learned !eputy Chief /ustice then concluded)

'The purpose and effect of the policy as clearly indicated in the affida it e idence in support of the answer to the petition was inter alia to impro e quality of education) enhance accessibility to education by more people and reduce the cost of education# 0t was not discriminatory as it was suggested by the petitioners# 0t was applicable to all the students many of whom had similar religious beliefs and con ictions but accepted the programme# 0n this obser ation) 0 am fortified by affida it e idence deponed to on behalf of the respondent by 5rofessor Ssebuwufu in paragraph 2 *supra+# There is no dilemma or Constitutional burden facing the petitioners as submitted by their learned counsel# They are not required to gi e up or forego their cardinal tenet of their religious belief that they must not wor& on Sabbath#'

;egarding the question of the right to education) the learned !eputy Chief /ustice referred to the accommodation offered by the respondent and other options open to the appellants' 'The respondent e en ga e them alternati es of ta&ing the educational programmes when fi"ed on other days than Sabbath# They had that option but not to gi e up their religious beliefs# They had so many choices including transferring to other $ni ersities or 0nstitutions# =o e idence of reprisal is adduced to pro e that allegation and in my iew it is not correct as contended by (r# Ga&embo Gatende that the petitioners are suffering because of their firm religious con iction# 0f anything other students or groups may be e"ercising similar problems# The respondent has students and staff from arious religious bac&ground and it is admitted it may not meet the interest of a particular group) particularly in the critical areas of attendance of lectures and e"aminations#' (pagiF%ahigeine /A) referred to the $ni ersity and other Tertiary 0nstitutions Act) =o - of 2001) under which the policy and regulations were made and said) '0t is material to note that the respondent's policies and regulations are made under the $ni ersity and other Tertiary 0nstitutions Act =o - of 2001 with a purpose to pro ide for the establishment of the =ational Council for <igher education) its functions and administration and to streamline the establishment) administration and standards of $ni ersities and other 0nstitutions of <igher Cducation in $gandaE and to pro ide for other related matters# The purpose and effect of the Act and regulations in as far as this petition is concerned are to be construed against the bac&ground of Article - of the Constitution which proclaims '$ganda shall not adopt a state religion#' This Article therefore frees $gandans from official dogma and lea es them to worship anything or nothing within Article 20) 2,*11+ *c+ and 2-# These stipulated that religious freedom has to be practiced in a manner consistent with this Constitution and in community with others# 0t thus gi es religious equality but not immunity from obser ance of the law# ;eligious freedom is) therefore) not an absolute human rights# The learned /ustice then concluded)

'$ganda therefore being a secular state) means that the respondent acting under Act =o - of 2001 and the regulations thereunder is not circumscribed by the ariety of religious beliefs obtaining in the institution as deponed by the 7ice Chancellor in his affida it dated -th (ay 2002#' %er&o /A) emphasised the intolerable burden that would be imposed on the respondent if it was to accede to the appellants demands' '0n my iew to accede to the prayers of the petitioners and ma&e the declarations they are see&ing would place an intolerable burden on the $ni ersity in perpetuity and ma&e the smooth administration of the institution difficult# Therefore there is no way the $ni ersity would &now the number of interest groups that would ma&e similar demands for special treatment#'

After quoting Article 92 of the Constitution) Twinomu1uni /A obser ed that the appellants had to respect the rights of others in the en1oyment of their rights' D8hile the petitioners are free to en1oy their rights and freedoms they must respect the rights and freedoms of others who do not practice the same religion or those of the $ni ersity# The regulations in issue are nonFdiscriminatory# They equally apply to all the people and necessary in order to run an institution as (a&erere $ni ersity# They do not howe er) affect anyone who does not oluntarily choose to 1oin the $ni ersity# 0f 0 admit you to li e 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# .or these reasons 0 would hold that (a&erere $ni ersity regulations do not in any way iolate or contra ene the petitioners' constitutional rights of religion and education#D 3n her part Gitumba /A) underscored the fact that the appellants had a choice to 1oin or not 1oin the respondent and that the respondent's policy was intended and did secure accessible and high quality higher education# She obser ed' D0 would li&e to obser e that the ;espondent $ni ersity is not the only $ni ersity in the country# The petitioners freely choose to go to (a&erere $ni ersity and ha e therefore to abide by the conditions# The right to education pro ided by Article 20 of the Constitution does not in any way mean the right to attend the ;espondent $ni ersity at the students' own terms# She held that the respondent's regulations did not contra ene Article 20 of the Constitution because the ob1ects of the Act as set out in Section 2 are stated as follows' DThe ob1ect of this Act are to establish and de elop a system go erning 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 standard institutions to students wishing to pursue higher education courses# *Cmphasis hers+# The learned /ustice of the Constitutional Court then concluded that the respondent's policy was consistent with the Constitution# She stated) D0n my iew the e idence adduced especially in the affida it of 5rofessor /ohn Ssebuwufu shows that the respondent's policy is in strict compliance with the Constitution# 0n his affida it dated -th (ay 2002) he a ers) inter alia) that the practice of scheduling lectures) tests and e"aminations on any day of the wee& from -#00 a#m# to 10#00 p#m# has yielded the following ad antages' 1# $ni ersity education has been made accessible to large number of students including e ening studentsE 2# there has been an increase of the inta&e of pri ately sponsored studentsE 2# the ariety of courses offered has increasedE

9# 6#

the the cost

$ni ersity of

has

generated education for

more students

re enueE has become

and cheaper#D

$ni ersity

0 ha e quoted e"tensi ely from the 1udgments of the /ustices of the Constitutional Court to demonstrate how each of them resol ed the issue whether the respondent's policies and regulations) infringed the appellant's rights to education and freedom of religion# They all arri ed at a common finding that the respondent's policies and regulations were neither inconsistent with the Constitution nor infringed the appellant's rights# 0 am in general agreement with their reasoning and conclusion# .rom the e idence of 5rofessor /ohn Ssebuwufu contained in his arious affida its) it is clear to me that the respondent was ali e to its duty under Article 20 of the Constitution to respect the rights and freedoms of all its students) including those of the appellants# 0ts policies in e"panding and academic programmes) and increasing students' inta&e were aimed at increasing access to $ni ersity education in accordance with Article 20 of the Constitution## The appellants were not deliberately or discriminatorily denied the right to education or their freedom to religion# 0ndeed) the respondent too& measures to accommodate the appellants special concerns by allowing them to reta&e e"aminations) which they had missed on account of their being held on Sabbath day# Consequently) the ad erse 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 92 of the Constitution# 0t was submitted for the respondent that the interference with the appellants' rights was not substantial and therefore could not be said to ha e infringed their rights# Counsel relied on the case Syndicat =orthcrest s# Amstem *2009+ 2 SC; 661 where it was stated at page 669) D.reedom of religion is triggered when a claimant demonstrates that he or she sincerely belie es in a practice or belief that has a ne"us with religion# 3nce religious freedom is triggered a court must ascertain whether there has been nonFsubstantial interference with the e"ercise of the implicated right so as to constitute an infringement of freedom of religion under the Buebec *or the Canadian+ Charter# <owe er) e en if the claimant successfully demonstrates nonFtri ial 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 iew to underlying conte"t in which the apparent conflict e"ists#D 0n the present case the Constitutional Court found that interference with the appellants' right to education or the freedom of religion was nonFsubstantial especially as the respondent accorded to them some measurable accommodation to enable them realiAe both their right to education as well as religious freedom# 0n my iew the Constitutional Court came to the correct conclusion that the policy and regulations of the respondent did not iolate the rights and freedom of the appellants) nor did they impose an unconstitutional burden on them# Accordingly) grounds 1) 2 and 9 should fail#

4uty

to

2ccommodate:

0t was submitted by counsel for the appellants in respect of ground 6 that the /ustices of the Constitutional Court failed to e aluate the e idence correctly leading them to conclude that gi ing appellants more accommodation would impose unbearable burden on the respondent# Counsel argued that there was no e idence to support such a finding# The principles relating to the duty to accommodate and the degree of accommodation were e"pounded in the cases of Syndicat Cnseignement de Champlain s# CS; !echambly C %erge in *1,,9+ ;CS 62) and Central Alberta !airy 5ool s# Alberta *<uman ;ights Commission+ 1,,0 2 SC; 9>,# 0n Syndicat de Cnseignement de Champlain case *Supra+ the Supreme Court of Canada was dealing with a case of religious discrimination of employees# The court obser ed that reasonable accommodation was an integral part of equality# The court said further that historically the duty to accommodate de eloped as a means of limiting the liability of an employer who was found to ha e discriminated by the bona fide adoption of a wor& rule without any intention to discriminate# %y pro iding reasonable accommodation to the affected wor&ers) the employer could 1ustify the ad erse effect discrimination and thereby a oid liability for the unintended consequence of the rules of employment# +he e#tent of the duty to accommodate in cases of adverse effect discrimination in the "yndicat Case as DThe duty in a case of ad erse discrimination on the reasonable steps to accommodate the complainant short ta&e such steps as may be reasonable without undue employers business and without undue as stated follo s:

basis of religion or creed is to ta&e of undue hardshipE in other words) to interference in the operation of the e"pense to the employer#D

The factors to be considered in determining what constitutes reasonable accommodation were set out in the Central Albert !airy 5ool Case *Supra+ at pages 620F21# 8here it was said) D0 do not find it necessary to pro ide a comprehensi e definition of what constitutes undue hardship but 0 belie e it may be helpful to list some of the factors that may be rele ant to such appraisal# 0 begin by adopting those identified by the %oard of 0nquiry# 0n the case at bar F financial cost) disruption of a collecti e agreement) problems of morale of other employees) interchangeability of wor& force and facilities# The siAe of the employers operation may influence the assessment of whether a gi en financial cost is undue or the ease with which the wor& force and facilities can be adapted to the circumstances# 8here safety is at issue both the magnitude of the ris& and the identity of those who bear it are rele ant considerations# This list is not intended to be e"hausti e 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 ary from case to case#D The Court went on to obser e 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 engra ed in stone# They should be applied with common sense and fle"ibility in the conte"t of the factual situations presented in each case# 0t should be remembered that the duty to accommodate is limited by the words DreasonableD and Dshort of undue hardshipD# Those words do not constitute independent criteria# ;ather they are alternate methods of e"pressing the same concept# Although there was no allegation of discrimination in this case 0 am satisfied that the principles 0 ha e elucidated abo e apply with equal force to the present appeal# 0 find that the /ustices of the Constitutional Court correctly e aluated the e idence relating to the issue of accommodation and came to the right conclusion that gi ing the appellants more accommodation would impose unbearable burden and hardship on the respondent# 0 agree with the Constitutional Court that the respondent offered the appellants reasonable accommodation and that granting the appellants the e"tra accommodation requested would cause undue hardship and e"pense to the respondent as well as seriously affect the ability of the respondent to pro ide accessible) affordable ) quality higher education to a di erse and multiFreligious community# 0 therefore find no merit in ground 6) which should fail# Waiver of Ri=hts or -stoppel:

0t was argued by counsel for the appellants that the appellants did not wai e their rights because there is no estopped against human rights# 4earned Counsel relied on the case of Tellis ? 3thers 7s# (ombay (uncipal Corp ? 3thers *1,>-+ 4;C *Const+ 261) where the Supreme Court of 0ndia held that there is no estoppel against the Constitution# The Court obser ed that in petitions which were clearly maintainable under Article 22 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 indi iduals) but also ser ed the public interest# =o indi idual could barter away the freedom conferred upon him by the Constitution and so any concession made in the proceedings *whether under a mista&e of law or otherwise that he does not possess or ha e not in1ured any fundamental right+ could not create an estoppel in those or any subsequent proceedings) nor could fundamental rights conferred by the Constitution be wai ed# The Supreme Court further held that notwithstanding the fact that the petitioners conceded in the %ombay <igh Court that they had no fundamental right to construct hutments on pa ements and they will not ob1ect to their demolition after the 16th 3ctober 1,>1) they were entitled to assert that any such action on the part of the public authorities will be in iolation of their fundamental right# <ow far the assertion regarding the e"istence and scope of the right claimed by the petitioners was well founded was another matter# 0n Syndicat =orth Crest s Amselem *supra+) the Supreme Court of Canada obser ed that 'whether one can wai e a constitutional right li&e freedom of religion is a question that is not free from doubt'# The Court stated that in order to amount to a wai er if any) the wai er must be unambiguous) the wai er must be oluntarily and freely e"pressed with a true understanding of the true consequences and effectsE and it must be e"plicit) stated in e"press) specific and clear terms#

0n the present case) it is not disputed that the appellants were made aware of the respondents' policy and regulations# C en though) the appellants oluntarily accepted the terms containing in the /oining 0nstructions) they cannot be said to ha e wai ed their rights to education or freedom of religion# =e ertheless their rights were not infringed in contra ention of the pro isions of the Constitution# @round 2 should therefore fail# -sta$lishin= %ustifia$le 4ero=ation>.imitation:

@round 6 is ague) argumentati e and repetiti e of foregoing grounds of appeal and generally offends the rules for drawing up grounds of appeal# 0t 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 92# 0n my iew) learned counsel for the appellants' should ha e argued ground fi e 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 contra ention of Articles 20) 2,) 2,*1+ *c+ 20 and 2- of the Constitution in the case of the petitioners# 0n 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 iolates that constitutionally protected right or freedom# 0f 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 contra ene the pro isions of the Constitution guaranteeing that right or freedom# <owe er) 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 1ustified or upheld upon the basis of the general limitation or derogation pro ision under Article 92 of the Constitution# 0n @round 6) the appellants in effect argue that the Constitutional Court erred in holding that the respondent did not ha e the onus of pro ing 1ustifiable derogation from their fundamental rights under Article 92 of the Constitution# <a ing found that respondent's policies and regulations were not inconsistent with Articles 20) 2,*1+ *c+) 20) and 2- of the Constitution) the /ustices of the Constitutional Court held that the respondent did not ha e to claim a lawful derogation under Article 92 of the Constitution# The learned /ustices did not anywhere in their 1udgment misdirect themsel es that the respondent did not bear the burden of establishing lawful derogation# 0ndeed the /ustices of the Constitutional Court declined to consider the second issue) in iew of their findings on the first issue# The principles for establishing 1ustifiable derogation or limitation on a fundamental right or freedom ha e been established in se eral Canadian and $gandan cases# =otably of these are ;#7# %ig (# !rug (art 4td *1,>6+ 1> !4; *9th Cdn+ 22 ;#7# /a&es *1,>6+ 26 !4; *9th Cdn+ 2-2 and Charles 3nyango 3bbo ? Another 7s# Attorney @eneral *Supra+#

0n ;#7# /a&es *1,>6+ 26 !4; *9th Cdn+ at 22-) the Supreme Court of Canada laid down the principle of proportionality in determining Whether the limitation is reasona$ly ?ustifia$le in a free and democratic society as follo s: D.irst) the ob1ecti e which the measures responsible for a limit on a charter right or freedom are designed to ser e) must be 'of sufficient importance to warrant o erriding a constitutionally protected right or freedom' #7# %ig ( !rug (art 4td# *1,>6+ 1> !4; *9th Cd+ 221# The standard must be high in order to ensure that ob1ecti es which are tri ial or discordant with the principles integral to a free and democratic society do not gain protection# 0t is necessary at a minimum that an ob1ecti e relates 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 ob1ecti e is recognised) then the party in o&ing Section 1 *the limitation clause+ must show that the means chosen are reasonable and demonstrably 1ustifiedE This in ol es a form of proportionality test# ; 7 %ig (# !rug (art 4imited *Supra+ although the nature of the proportionality test will ary depending on the circumstances) in which each case courts will be required to balance the interests of society with hosts of indi iduals and groups#D The Supreme Court went to identify three components of the proportionality test' DThere are) in my iew three important components of a proportionality test# .irst the measures adopted must be carefully designed to achie e the ob1ecti es in question# They must not be arbitrary) unfair) or based on irrational considerations# 0n short they must be rationally connected to the ob1ecti e# Secondly) the means e en if rationally connected to the ob1ecti e in the first sense should impact as little as possible the right or freedom in question' ; 7 %ig ( !rug (art 4imited *Supra+# Thirdly there must be proportionality between the effects of the measures which are responsible for limiting the charter) right or freedom and the ob1ecti e which has been identified as of sufficient importance#D Those authorities establish that it is always necessary to determine whether the legislati e ob1ecti e is sufficiently important to 1ustify hunting a fundamental right# 0t must be established that the impugned action has an ob1ecti e of e"pressing a substantial concern of society in a free and democratic society# The courts ha e to stri&e a balance between the interest of freedom and social interest) using the three tests# .undamental rights should not be suppressed unless they are pressing community interests) which may be endangered# 0n determining what is acceptable and reasonably 1ustifiable 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# 0n the balancing process) the rele ant consideration will include' 1# the nature of the right that is limitedE

2# its importance to an open and democratic society based on freedom and equalityE

2#

the

e"tent

of

the

limitationE

9# the efficacy and particularly where the limitation has to be necessaryE and 6# 8hether the desired ends could reasonably be achie ed through other less damaging means# Although the /ustices of the Constitutional Court declined to consider the second issue framed at the hearing) they did in fact ta&e into account the principle that the right to education and freedom of religion are not absolute and that in the en1oyment of their rights) the appellants must not pre1udice the fundamental rights and freedoms of others or the public interestE as pro ided for under Article 92 of the Constitution# 0t is my iew that had learned /ustices ta&en into account all the abo e principles) they would ha e come to the same conclusion that the limitations imposed upon the right to education and freedom of religion were 1ustifiable in a free and democratic society# The o erriding ob1ect or purpose of the respondent's policies and regulation was an important and pressing social or community interest) namely to impro e access to quality $ni ersity education at reasonable costs for all $gandans# The policy was not discriminatory but was applicable to all students from arious religious beliefs# The e"tent and effect of the interference in the en1oyment of the appellants' rights and freedoms was minimiAed by the reasonable accommodation e"tended to the appellants by the respondent# To e"empt the appellants from the policy and regulations of the respondent or to grant them e"tra accommodation would impose unbearable burden on the respondent which would cause undue hardship and e"pense on the respondent# The means adopted by the respondent to implement its policy and regulations were rational) fair and proportional to the ob1ecti e to be achie ed# 0n my iew) the respondent adduced sufficient e idence) 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 1ustifiable in a free and democratic society in accordance with Article 92 of the Constitution# Accordingly) ground 6 should also fail# !isposition' 0 would) therefore) uphold the decision of the Constitutional Court that the respondent's policies and regulations are not inconsistent with and in contra ention of Articles 20) 2,*1+ *c+) 20 and 2of the Constitution of $ganda in respect of the appellants# 0 would also uphold the Court's decision that the respondent did not ha e to claim a lawful derogation in accordance with Article 92 of the Constitution# 0 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# 0n the result) 0 would dismiss this appeal# 0 would ma&e no order as to costs#

As the other members of the Court agree with this 1udgment and the order 0 ha e proposed) this appeal is dismissed with no order as to costs# %U415-3+ 0F +"-60060' %"C

0 ha e had the benefit of reading in ad ance the draft 1udgments prepared by their 4ordships the learned Chief /ustice and Gatureebe) /SC# %oth ha e gi en the bac&ground to this appeal) set out the contentious matters and the grounds of appeal# 0 entirely agree that there is no merit in this appeal# (a&erere $ni ersity) the present respondent) clearly warned all new students in ad ance about the fact of conducting lectures and e"aminations on all the days of the wee&# Cach student as a fresher was made aware of these facts through the .reshers /oining 0nstructions at the commencement of the first year of admission to (a&erere $ni ersity# The appellants were aware of this from day one# The .reshers /oining 0nstructions were in conflict with their religious beliefs# 0nstead of opting not to 1oin (a&erere $ni ersity) the appellant consciously chose to 1oin and embar&ed on study &nowing that by ta&ing these steps) they thereby bound themsel es to abide by the rules and regulations of (a&erere $ni ersity# They cannot therefore turn around in the course of their study to see& special treatment which treatment would tantamount to unwarranted disruption of ast (a&erere $ni ersity programmes# The respondent's e idence especially the additional affida it of 5rof# 5# /# (# Ssebuwufu) demonstrate how far the respondent went to accommodate the needs of the appellants# 0 find no merit in any of the grounds of the appeal# 0 would dismiss the appeal# 0 would ma&e no order as to costs# %U415-3+ 0F 62R060R2' %"C

0 ha e had the ad antage of reading in draft the 1udgments prepared by my 4ords the learned Chief /ustice and my learned brother) Gatureebe) /SC and 0 entirely agree that the appeal has no merit# 0 only wish to add that the appellants were warned of the respondent's policy entitled D Makerere .ni/ersity Academic 0egistrar1s Department 2reshers Joining 3nstructions +4445$''' Academic 6ears)D before 1oining the $ni ersity# The policy states in bold letters as follows' 7&tudents are informed that .ni/ersity )rograms may run se/en days a eek- &ince the .ni/ersity has students and mem"ers from /arious religious "ackgrounds, the .ni/ersity may not heed the interests of a particular group, particularly in the crucial areas of attendance of lectures and5or e8aminations- 6ou are therefore urged to respond to the academic ork in the faculty e/en if it takes place on respecti/e days of orship7 The document warns each student 1oining the $ni ersity as follows'

'=3TC' 54CASC !3 ;CA! T<0S !3C$(C=T A=! $=!C;STA=! 0TS C3=TC=TS 7C;I 8C44' The appellants are all members of the Se enth day Ad entist Christian faith# Apparently the cardinal tenet of their faith is based on the fourth commandment of @od to be found in the boo& of C"odus Chapter 20'> which states' ';emember the Sabbath !ay by &eeping it holy# Si" days you shall labour and do all your wor&) but the se enth !ay is a Sabbath to the 4ord your @od# 3n it) you shall not do any wor&) neither you) nor your son or daughter) nor your man ser ant) nor your maidFser ant) nor your animals nor the alien within your gates# .or si" days the 4ord ma&e the hea en and the earth) the sea and all that is in them) but he rested on the se enth day# Therefore) the 4ord blessed the Sabbath !ay and it is holy#' The appellants contend that because of this commandment) the $ni ersity .reshers /oining 0nstructions 1,,,:2000) the $ni ersity regulation which require students to attend lectures and ta&e mandatory tests and e"aminations on any day of the wee&) including the Sabbath !ay contra enes articles 20) 2,*1+*c+) 20 and 2- of the Constitution of $ganda# They therefore) prayed in their petition to the Constitutional Court that the regulation be declared null and oid# +he Constitutional Court dismissed the petition9

Clearly the appellants 1oining the $ni ersity were warned of the $ni ersity 5olicy before 1oining but before commencing studies that it will conduct its programmes se en days a wee&# These regulations are not discriminatory# They apply to all the students in order to run the $ni ersity# They do not affect any one who does not oluntarily choose to 1oin the $ni ersity# 0n my iew) if the appellants accepted to 1oin the $ni ersity under specified conditions spelt out in the .reshers /oining 0nstructions 1,,,:2000 Academic Iear) they cannot subsequently attempt to replace the conditions under which they were admitted with the conditions which suit their own religious beliefs# The $ni ersity would rightly hold the appellants out of order) because they bound themsel es to abide by the $ni ersity regulations) which regulations do not iolate their constitutional rights# 0n the result) 0 would dismiss the appeal#

%U415-3+

0F

5U.-312

%"C

0 had the ad antage of reading in draft the 1udgments of the learned Chief /ustice 3do&i and my learned brother Gatureebe /SC# 0 agree with both that this appeal ought to fail and should be dismissed with no order as to costs# (a&erere $ni ersity) the respondent) as a secular educational institution has the right to ma&e regulations that it considers necessary for discharging its statutory obligations and achie ing its ob1ecti es# 0ts policy to increase student inta&e and to initiate a ariety of courses led to the introduction of a regulation that requires students to attend lectures and ta&e mandatory tests and e"aminations on any day of the wee&#

The policy and the regulation neither pre ent students from practicing their religionsE nor depri e or deny any student the right to education# The appellants) who profess the religious faith of Se enth !ay Ad entists) 1oined the $ni ersity with full &nowledge that under the said regulation they would be required to attend lectures and ta&e mandatory tests and e"aminations on any day) including the Sabbath day# 0n my iew) the admission of the appellants into the $ni ersity did not create or impose on the respondent any constitutional obligation to ad1ust its programs to conform to the appellants' religious practices# 8hen subsequently the respondent failed or refused to ma&e special arrangements for the appellants to sit the tests or e"aminations scheduled for the Sabbath day outside the official hours) it did not thereby iolate their freedom to practice their faith as they prefer# The appellants had the choice to 1oin the $ni ersity and ad1ust their religious practices to abide by its regulationE or to pursue their education where they could adhere to their strict obser ance of the Sabbath#

%U415-3+

0F

6237-/,25B2'

%"C

0 ha e had the benefit of reading in draft the 1udgment of 3do&i) the learned Chief /ustice and of my learned brother) Gatureebe) /SC) and 0 agree with them that this appeal ought to be dismissed for the reasons they ha e gi en# 0 would ma&e no order as to costs#

%U415-3+

0F

62+UR--B-'

%"C

This appeal is against the decision of the Constitutional Court which dismissed a petition see&ing protection of the right and freedom to e"ercise religious beliefs as guaranteed by Article 2,*1+*c+ of the Constitution of $ganda# The appellants are Se enth !ay Ad entists Students at (a&erere $ni ersity) the respondent# They contend that the policy and regulations of the ;espondent requiring the appellants to attend lectures and sit e"aminations on Saturdays iolate their constitutional rights to religion in so far as it compels them to Dwor&D 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 Se enth !ay Ad entist .aith) which) it is stated) belie es in the sanctity of the Sabbath# To these belie ers) no wor& is to be done on the Sabbath) which falls on the day commonly &nown as Saturday# Accordingly the appellants contended that they could not attend lectures or sit e"aminations on Saturdays as this amounted to doing wor& on the Sabbath# They sought to be accommodated by the ;espondent by as&ing that they be allowed to sit their e"ams outside the hours of the Sabbath) i#e# between sunset on .riday and sundown on Saturday# There correspondence between the appellants and members of their .aith on the one hand and the officers of the ;espondent on the other hand

showing

an

attempt

to

resol e

the

matter

amicably#

The ;espondent contends that it is a secular public uni ersity which does not fa our any particular religion# 0t says that in order to carry out its legal mandate of e"panding uni ersity education and ma&ing it a ailable to as many people as possible at the lowest cost possible) the uni ersity formulated the policy that the core acti ities of the $ni ersity) li&e teaching and e"aminations) would ta&e place on any day of the wee& including Saturdays and Sundays# ;egulations were then formulated to implement this policy# This information was made a ailable to all persons intending to 1oin the uni ersity through the /oining 0nstructions and letters of admission sent out to students# The ;espondent 's position was that the appellants could be accommodated by allowing them to reFta&e any missed e"amination at the ne"t sitting when that e"amination 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 e"amination results# 0t would also lead to e"tra costs# 8hen the 5arties failed to reach amicable resolution) the appellants filed a 5etition in the Constitutional Court# They alleged that the 5olicy of the ;espondent and its regulations requiring the appellants to attend lectures and sit e"aminations on Saturday *Sabbath+ iolated their constitutional rights and was inconsistent with Articles 20) 2,*1+ * c+ and 20 of the Constitution# The Constitutional Court heard the petition and considered affida it e idence filed by both parties and dismissed the petition by unanimous decision# <ence this appeal 0n this court) the appellants were represented by (;# Christopher (adrama assisted by (r# .rederic& Sentomero and (r# =subuga Ssempebwa# The respondent was represented by (r# !ennis 8amala# The appellants filed si" grounds of appeal as set out here below'

1# That the learned /ustices of the Court of Appeal:Constitutional Court erred in law and fact when they held that the ;espondent policies and regulations in issue are not inconsistent with articles 20 and 20 of the Constitution and that the ;espondent was 1ustified in requiring the appellants to sit e"aminations on their Sabbath# 2# That the learned /ustices of the Constitutional Court:Court of Appeal erred in law and in fact and misdirected themsel es on questions of law and fact when they held that the ;espondent's policy and regulations that compelled the appellants to sit e"ams on their Sabbath or any day of the wee& between - am in the morning and 10#00 p#m at night is not inconsistent with and did not iolate the appellants human rights under articles 20) #2,*1+ *c+) 20 and 2- of the Constitution# 2# That the learned 1ustices of the Constitutional court erred in law when they held that the fresher 1oining instructions of the ;espondents notifying the Appellants on 1oining the ;espondent $ni ersity that programmes would run se en days a wee& and that the ;espondent would not be obliged to respect any day of worship was sufficient notice that appellants fundamental tenet of religion in respect of &eeping a Sabbath on Saturdays when required to sit e"ams on that day and that the appellants should ha e turned down the offer to 1oin the

respondent

at

the

beginning#

9# That the learned /ustices of the Constitutional Court erred in law and in fact when they held that the policy of the ;espondent requiring students to sit e"ams on the Sabbath irrespecti e of their religion) did not gi e rise to an unconstitutional burden on the appellants that iolated their freedom of religion by irtue of a fundamental tenet of the Ad entist Christian .aith# 6# The appellants shall demonstrate that the learned /ustices of the Constitutional Court se erally misdirected themsel es on matters of law) procedure and fact when they substantially found that there was no inconsistency in the appellants petition:case with article 20) 2,) 20 and 2- of the Constitution) there being no iolation of any rights therein and the respondent therefore did not ha e the onus of pro ing 1ustifiable derogation from any rights of the Appellants# 6# The learned <onourable /ustices of the Court of Appeal failed to properly e aluate the e idence and therefore erroneously found that accommodating Se enth !ay Ad entist students on the Sabbath day issue would impair or ad ersely affect the fundamental rights and other freedoms of other persons# (r# (adrama argued grounds 1) 2 separately) and then grounds 2 and 9 together and finally ground 6 separately# 0n respect of ground 6) counsel submitted that the learned /ustices of the Constitutional Court misdirected themsel es in fact) law and procedure when they held that the respondent did not ha e the burden to pro e that there was 1ustification to derogate from obser ance of the rights and freedoms guaranteed by the constitution and therefore bring itself into the ambit of Article 92) of the constitution# <e argued that the /ustices misdirected themsel es as to the application of Article 92) and cited the decision of this Court in the case of Charles 3nyango 3bbo F7sF Attorney @eneral) Constitutional appeal =o#2 of 2002 in support# <e also cited the Canadian case of The Bueen F7sF 3a&es) K1,>-L 4;C 9-- which had also been relied upon by the Constitutional Court# 0n respect of ground 1) counsel submitted that the /ustices of the Constitutional Court were wrong to hold that the respondent did not infringe Article 20 of the Constitution# <e submitted that Article 20*2+ puts a hea y burden on institutions li&e the respondent to uphold human rights) and the respondent had totally failed to do so# <e further submitted that the court ought to ha e ta&en 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 wor& *attend lectures and sit e"aminations on the Sabbath+ contrary to their faith# <e cited the Canadian case of The Bueen F7sF %ig ( !rug (art 4td K1,>6L 4;C *Const+ 5#222) as authority for the proposition that in determining the constitutionality of a law) both the purpose and effect of such law on indi idual rights must be ta&en into account# 0n that regard he also cited the case of Attorney @eneral F7sF Abu&i And Another) particularly the /udgment of 3der) /SC which also considered the Canadian case of Bueen F7sF %ig ( !rug (art *Supra+# <e also cited the Himbabwean case of ;e Chi&weche K1,,6L 2 4;C ,2#

0n arguing ground 2) Counsel submitted that the /ustices were wrong in law to hold that the appellants had wai ed their rights by 1oining the respondent $ni ersity &nowing as they did that lectures and e"aminations were offered se en days a wee&) and that the appellants were therefore estopped from claiming iolation of their rights# Counsel cited the 0ndian Case of Tellis And 3thers F7s %ombay (unicipal Corporation And 3thers K1,>-L 4;C 261E and also the Case of Syndicate =orthcrest F7sF Amselem K2009L 2 SC; 660 as authority for the proposition that constitutional rights could not be wai ed# 0n respect of grounds 2 and 9 counsel submitted that the /ustices were wrong to find that the policy and regulations of the ;espondent were not inconsistent with Articles 20) 2,*1+ *c+) 20 and 2- of the constitution and for failure to find that those regulations constituted an unconstitutional burden on the appellants by requiring them to sit e"aminations and attend lectures on Sabbath# <e argued that freedom of religion included the right to manifest religion through practice) which would be infringed if the appellants had to sit e"aminations and attend lectures on the Sabbath# Counsel further submitted that court was wrong to question the sincerity of the appellants' beliefs# <e cited the !rug (art Case *supra+ in further support of his argument# 3n ground 6) counsel submitted that the learned /ustices did not properly e aluate the e idence so as to find that the respondent could and should ha e accommodated the appellants# <ad the /ustices properly e aluated the affida its of the appellants in re1oinder) they would ha e found that the respondent should ha e accommodated the appellants# Counsel) in conclusion) prayed that this Court should set aside the 1udgment of the Constitutional Court) and ma&e declarations that the respondent's policy and regulations are inconsistent with the Constitution) and that that the appellants are entitled to accommodation and to ma&e orders accordingly# .or the respondent) (r# 8amala commenced his submissions by first arguing that grounds 2) 9)6 and 6 were defecti e in so far as they did not contain the unanimous holdings of the 1ustices of the Constitutional Court# To him) the learned /ustices did not hold that the respondent's /oining 0nstructions were sufficient notice that absol ed the respondent from obser ing fundamental rights as alleged in ground 2 of appeal) nor did the /ustices hold that the respondent did not ha e the onus to pro e derogation as per Article 92 of the Constitution) as alleged in ground 6 of appeal# <e further argued that the /ustices did not hold that accommodating the appellants on the Sabbath day would ad ersely affect the ma1ority# <e contended that all the si" grounds of appeal can be summarised into one ground) i#e# whether the respondent's policy and ;egulations are inconsistent with and in contra ention of Articles 20) 2,*1+ *c +)20) 2- and 92 of the Constitution) and whether the respondent is entitled to claim lawful derogation under Article 92# Counsel submitted that not e ery infringement of a fundamental right constitutes an unconstitutional act# The test is the Dsubstantial burdenD i#e# whether an infringement constitutes a substantial infringement# <e cited the SI=!0CATC case *supra+ particularly pages 6>9 and 6>6 paragraph 2# <e further argued that rights are not absolute# To amount to a iolation of the Constitution) the iolation must be substantial# <e argued that one needs to show the sincerity of one's beliefs to be able to claim a iolation of such beliefs# <e submitted that in so far as the appellants had signed the admission instructions form of the respondent) they wai ed their

constitutional rights and cannot claim iolations of these rights by the ;espondent# <e referred us again to the SI=!0CATC case *supra+ at pages 6,-) 6,> and 6,,# 0n summarising his submission on the first part of the question he had posed) counsel submitted that the regulations were not unconstitutional# <e submitted that the Constitution had to be loo&ed at as a whole# Articles 2,*1+ * c+) 20 and 2- are not absolute) and regard had to be had to the pre1udice that would be occasioned to other students# 0n that regard) he relied on the affida its e idence of the 7ice Chancellor and the @uild 5resident) and cited 3b1ecti e 1> of the =ational 3b1ecti es and !irecti e 5rinciples of State 5olicy of the Constitution and section 2 of the $ni ersities and Tertiary 0nstitutions Act in support of his argument# 3n the second part of the question) i#e# whether there was a 1ustifiable derogation under Article 92) Counsel submitted that based on the affida its of the 7ice Chancellor and the @uild 5resident) there was e idence that the interest of the public would be ad ersely affected# <e cited %lac&'s 4aw !ictionary for the definition of Dpublic interestD) and The Bueen 7sF 3a&es K1,>-L 4;C 9-2 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 pro isions of the Constitution) i#e# the right to education ersus the right to religion# <e further contended that one had to apply the proportionality test) and the measure adopted had to be carefully designed to achie e the public ob1ecti es# 0n counsel's opinion) the measure must not be unfair) arbitrary and based on irrational considerations# <e submitted that the affida it of the 7ice Chancellor showed that all the criteria had been met) and therefore there was 1ustifiable derogation under Article 92# <e also cited the 3nyango 3bbo 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 hea y burden on and ad ersely affect the operations of the respondent in terms of rationalising e"aminations) e"tra e"penses and costs# <e cited the case of Commission Scolaire ;eginale !e Chambly 7 %erge in K1,,9L 2 S C; *Canada+ 626) at pages 699 F 696# 0n reply) (r# (adrama argued that the case of SI=!0CATC *supra+ had been quoted by counsel for respondent out of conte"t in respect of sincerity of belief and of wai er of rights# <e submitted that the instant case was one where wai er could apply# The admission form gi en to students was not signed by them so there could be no e"plicit wai er# <e referred to the Tellis case *supra+) and also the Syndicate case at page 6-, F 6>0) 6>2 and 6>9# <e denied that the grounds of appeal were defecti e 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# <e cited section 2>*1+ of the $ni ersities and Tertiary 0nstitutions Act which allows admission of all students# This case raises a ery important issue relating to the need to balance obser ance of human rights of the indi idual) and the public interest# 0 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 contra ention of Articles 20) 2,*1+*c +) 20) 2- and 92 of the Constitution) and whether the respondent was entitled to claim a lawful derogation under Article 92# 0n my iew) all the si"

grounds of appeal filed by the appellant actually re ol e around that question# 0ndeed at the hearing of the 5etition in the Constitutional Court) the abo e 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 6 to the effect that the /ustices of the Constitutional Court had misdirected themsel es in law and fact in holding that the respondent did not ha e the burden to pro e that it was entitled to derogation under Article 92# <e contended that the onus was on the respondent to pro e that any derogation claimed had to be demonstrably 1ustifiable in a democratic state# 0n the light of the criticism of the Court by counsel for the appellants) it is necessary to e"amine what the learned /ustices actually stated on this point# 0n her lead /udgment) (u&asaFGi&onyogo) !C/) stated'

DThe 5olicy was applicable to all students and groups of arious time# The policy was not intentionally directed at the 5etitioners but to benefit the ma1ority student population# (oreo er) it is trite that human rights and freedoms must be en1oyed within limits as pro ided under Article 92 of the ConstitutionD# DArticle 92*1+ pro ides'

D0n the en1oyment of the rights and freedoms prescribed in this chapter) no person shall pre1udice the fundamental or other <uman ;ights and freedoms of others or the public interest#D D<uman rights) hence) are not absolute but enforceable within reasonable limits# 0t is worth while noting that the respondent has to plan and cater for all religious denominations based on different tenets# The $ni ersity would find it difficult to implement its ob1ecti es if it were to gi e e"emptions to all of them# <ence 5rofessor Ssebuwufu in his affida it e idence in paragraph , *supra+ which has not been contra ened deponed) inter alia) that the $ni ersity cannot grant the petitioners' request which includes offering Dspecial e"aminations to those students who are unable to attend e"aminations on particular days due to religious considerations or for any reason because such practice would create a ariance in academic standards and further lead to an increase in the cost of education#D 0t would appear to me that the learned !eputy Chief /ustice did address the concerns of Article 92 and seemed to be satisfied with the affida it e idence of the 7ice Chancellor) 1ustifying the need for derogation under Article 92# 0 do not see any holding in her 1udgment to the effect that the respondent did not ha e the onus to pro e the need for lawful derogation # 0 accordingly hold that there was no misdirection of any nature on this point by the !C/# 0n her 1udgment) (pagiF%ahigeine) /A states at page 12'

D0t is incumbent upon the 5etitioners to show that they are entitled to the remedies they see& on the grounds that their fundamental and human rights ha e been infringed by the respondent's policy# <owe er) the respondent must show 1ustification for a lawful derogation from such fundamental rights# This must be within the ambit of article 92 *2+#D

The learned /ustice then cites the case of ; F7sF 3a&es *supra+# This shows that the learned /ustice addressed her mind to the issue of burden of pro ing 1ustification for a derogation under Article 92# %ut she later found that there was Dno inconsistency between the respondent's policy and the impugned articles) the respondent does not ha e to see& to be co ered under a lawful derogation under article 92#D Again 0 see no misdirection by the learned /ustice on this issue as claimed by the learned Counsel for the Appellants# The learned /ustice made a finding that the policy of the respondent was not inconsistent with the impugned Articles) and there was therefore no used to in o&e Article 92# 0n his /udgment) Twinomu1uni) /A) at page 16 also cites Article 92 and also finds that'F D(a&erere $ni ersity regulations do not in any way iolate or contra ene the 5etitioners Constitutional rights of religion and educationD <a ing answered the first issue in the negati e) Twinomu1uni) /A) did not thin& that the respondent needed to claim the protection afforded by Article 92# 0n her /udgment) Gitumba) /#A) also addressed the issue of Article 92 at page 1-) but ha ing found that the policy and regulations of the respondent were not inconsistent or in contra ention of Articles 20) 2,*1+* c+) 20 and 2-) of the Constitution) the learned /ustice) held that the question of lawful derogation did not arise# Counsel for the Appellant cited the case of 3nyango 3bbo and ; 7sF 3a&es *supra+# 0 agree with the holdings in those cases which is to the effect that a person see&ing to show a lawful derogation must pro e that the circumstances e"ist that 1ustify the derogation# %ut in my opinion) one must start with proof by the petitioners that their rights ha e been infringed by the respondent# The respondent then would ha e the burden to pro e a 1ustification for a lawful derogation# 0n this particular case) the learned /ustices found that the appellants had failed to pro e that the policy and regulations of the ;espondent were inconsistent with the named Articles of the Constitution and therefore the case did not call for the need to pro e derogation by the respondent# 4earned Counsel pointed to some 3rbita dicta in the 1udgments which) he asserted) indicated that the learned /ustices 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 pro ed by e idence is 'infringement' of the rights# %lac&'s 4aw !ictionary 6th Cdition defines 'infringement' as 'brea&ing intoE a trespass or encroachment uponE a iolation of a law) regulation) contract) or right#' (erely DaffectingD the rights would not do# The /udges found as fact that there was no infringement# This is the finding that Counsel should ha e attac&ed# <e failed to do so#

/n the circumstances' / find that =round @ has no merit and must fail9

0 now turn to ground 1 which in my iew presented a more substanti e issue# Counsel argued that the learned /ustices were wrong to hold that the respondent did not infringe Article 20 of the constitution# 8hat the /ustices held actually was that the policy and regulations of the respondent were not inconsistent with or in contra ention of Article 20 *2+# 0t is necessary to quote the e"act wording of the Article for better appreciation of its import# Article 20 *2+ states as follows'

'The rights and freedoms of the indi idual and groups enshrined in this chapter shall be respected) upheld and promoted by all organs and agencies of @o ernment and by all persons#' The Constitutional Court did spend considerable time considering this Article# (u&asaF Gi&onyogo) !C/ in her /udgment states this' D3n Article 20 of the Constitution) 0 appreciate the submissions of Counsel on the effect of the 5etitioners' rights# 0t is true the respondent has a duty to accommodate the Se enth !ay Ad entists students minority but on condition that the policy on the 5etitioners' rights under Article 20 of the Constitution is not pre1udicial to other people's rights in the $ni ersity# Article 20 *2+ imposes an affirmati e constitutional duty on the respondent to respect) uphold and promote the religious beliefs of the 5etitioners and other members of their faith# 0 do not agree that on the e idence on record the respondent forced the 5etitioners to participate in the respondent's educational programmes on Sabbath day#D 0n my opinion) Article 20 *2+ cannot and should not be loo&ed at in isolation of the rest of the Constitution# 0 agree with Gitumba) /A) in her 1udgment where) while citing the TinyefunAa F7sF Attorney @eneral case) she states that the arious pro isions of the Constitution must be read together for purposes of harmony) completeness and e"hausti eness in interpreting it# %oth she and the other /ustices go to great lengths to show this practice in construing Constitutional instruments# .urthermore) the appellants had to pro e that the respondent had refused or failed to respect) uphold and promote the right to religion of the appellants# According to e idence on record the respondent is a secular public institution# 0t had certain duties pursuant to its Charter and the $ni ersities and 3ther Tertiary 0nstitutions Act# The policy of the respondent to utiliAe all the se en days of the wee& for teaching and e"aminations was meant to impro e the quality of education and to e"pand the inta&e into the $ni ersity so as to gi e as many people as possible a chance to access uni ersity 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 emphasiAe that anyone 1oining the $ni ersity) would be e"pected to attend lectures or sit e"aminations on any of the days of the wee&# The appellants 1oined the $ni ersity well &nowing this position# This was attested by affida its of the appellants themsel es and of the 7ice Chancellor of the $ni ersity) 5rof# Ssebuwufu# 0n his affida it dated -th (ay 2002) the 7ice Chancellor also outlined the alternati e possible measures that could be put in place to accommodate the appellants and others who may ha e difficulties in attending lectures or sitting e"aminations on Saturdays# <e stated in paragraph thus'F

DThe $ni ersity has made alternati e pro isions to such as of its students who may not be able to attend lectures and or e"aminations on a gi en day or time of the wee& in the following ways'F *a+ Students are offered an opportunity at the time of admission) to change course and or sub1ects in light of the pro ided timetables# The new students *freshers+ are granted an option) where possible) to offer courses with the most con enient timetable# *b+ Students who may be unable to sit an e"amination held on wee&ends or at any time of the wee& in a particular semester are allowed to apply to their respecti e deans:directors to reta&e the course and or e"amination when it is ne"t offered# *c + Students who are unable to attend lectures and or tutorials held on a particular day or time of the wee& 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#D This e idence clearly shows that the respondent did not fail or refuse to respect) uphold or promote the rights of the appellants# 0t is clear that the respondent was ali e to the concerns of the appellants# @enuine attempts were made to accommodate them# 0 therefore cannot agree with (r# (adrama's submission that the respondent failed to obser e Article 20*2+ in all respects) or at all# The other limb of Counsel's argument was that the effect of the policy and regulations is what ought to be considered# <e submitted that the effect was to compel the appellants to sit e"aminations on Saturday thereby ma&ing them either to do wor& on the Sabbath and stand condemned by @od) or miss the e"aminations and lose their studies which put a ery hea y and unconstitutional burden on them# <e argued that the appellants had to miss e"ams and yet there was no guarantee that the e"amination when ne"t offered would also not be on Sabbath# This had meant in some cases that students ha e had to stretch their courses beyond the period the course would normally ta&e# <e cited the !rug (art Case) the Abu&i Case and the Chi&weche Case) *supra+ in support# The learned /ustices also considered the abo e cited cases# So they addressed their minds to the issues and decisions therein# At page 12 of her 1udgment) (pagi %ahigeine) /A) had this to say# D%oth the purpose and effect of the policy impugned must be e"amined to determine its alidity or in alidity# 5urpose and effect are indi isible to the animation of the regulation or law D See The Bueen 7 %ig ( (art *4td+ *1,>6+ 4;C 222 where the applicable test was laid downE %oth purpose and effect are rele ant in determining constitutionality' either an unconstitutional purpose or an unconstitutional effect in alidate legislation# All legislation is animated by an ob1ect the legislature intends to achie e# This ob1ect is realised through the impact produced by the operation and application of the legislation# 5urpose and effect respecti ely in the sense of the legislation's ob1ect and its ultimate impact are clearly lin&ed) if not indi isible# 0ntended and actual effect ha e often to be loo&ed to for guidance in assuming the legislation's ob1ect and thus

its

alidity#D

<a ing thus considered the %ig ( (art case) the learned /ustice went on to hold that the respondent's policy and regulations) both in purpose and effect had not iolated the appellants' rights# 0 agree and would go further to quote the words of Chief /ustice 8arren of the $SA in the case of %raunfeld 7F %rown quoted in the !rug (art Case at page 26-' D3f course) to hold unassailable all legislation regulating conduct which imposes solely an indirect burden on the obser ance of religion would be gross o ersimplification# 0f the purpose or effect of a law is to impede the obser ance of one or all religions or is to discriminate in idiously between religions) that law is constitutionally in alid e en though the burden may be characterised as being only indirect# %ut if the State regulates conduct by enacting a general law within its power) the purpose and effect of which is to ad ance the State's secular goals) the statute is alid despite its indirect burden on religious obser ance unless the state may accomplish its purpose by means which do not impose such a burdenD *emphasis added+# 0n my iew the abo e statement is rele ant to the instant case# 0n his affida it) the 7ice Chancellor stated how the policy of offering lectures and e"aminations on any day of the wee& has helped e"pand student inta&e) reduced costs and impro ed the quality of education# <e has stated how setting separate e"aminations for the appellants might ad ersely affect the respondent by compromising the integrity of the e"aminations) 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 ob1ecti es of the respondent# 0n my iew) the stated ob1ecti e of the respondent to e"pand $ni ersity inta&e at as low a cost as possible to the students as a whole is sufficiently substantial to warrant o erriding the concerns of the appellants# 0n the !rug (art case at page 26, !ic&son) / states' D3nce a sufficiently significant go ernment interest is recognised then it must be decided if the means chosen to achie e this interests are reasonable a form of proportionality test# The Court may wish to as& whether the means adopted to achie e the end sought do so by impairing as little as possible the right or freedom in question#D 0 ha e no doubt in my mind that the means adopted to achie e the $ni ersity's ob1ecti es were reasonable gi en the bac&ground and the accommodation that was offered to the appellants# This case is to be distinguished from the Abu&i 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# <ere) the appellants ha e been admitted into the $ni ersity and are not being as&ed to lea e the uni ersity because of their faith# They are instead being allowed to e"tend their stay by ta&ing the missed e"aminations at a later time# 0n the circumstances) 0 agree with the findings of the /ustices of the Constitutional Court that the policy and regulations of the respondent were not inconsistent with or in contra ention of Article 20*2+ of the Constitution# Therefore) ground 1 of appeal also fails# 3n ground 2) Counsel argued that the /ustices of Appeal had misdirected themsel es in law and fact in holding that the appellants) by accepting to 1oin the respondent had thereby wai ed their

right to freedom of religion# <e submitted that wai er could not apply in the matter of en1oyment of a fundamental human right# <e cited the Syndicate Case *supra+# The issue here is whether there can legally be a wai er of fundamental rights# 0n the Syndicate case) the court obser ed at page 6,-' D8hether one can wai e a Constitutional right li&e freedom of religion is a question that is not free from doubtD 4ater at page 6,>) it states'F

DSecond) by its ery nature) wai er of any right must be oluntary) freely e"pressed and with a clear understanding of the true consequences and effects of so doing if it is to be effecti e#D Again at page 600 it is stated'F

DThird) at a minimum) wai er of a fundamental right such as freedom of religion if possible at all) presumably need not only be oluntaryE it must also be e"plicit) stated in e"press) specific and clear terms# =ot only would a general prohibition on constructions) such as the one in the declaration of coFownership) be insufficient to ground a finding of wai er) but arguably so would any document lac&ing an e"plicit reference to the affected charter right#D Considering the facts of this case) can it be said that the appellants wai ed their right to religion or to educationM# 0n her 1udgment) at page 1-) (u&asaFGi&onyogo) !C/ had this to say' D 0 wish to emphasiAe that) the pro isions of Article 20 notwithstanding) $ni ersity Cducation is not compulsory and is not obtainable only from the respondent# The petitioners had an option to 1oin other $ni ersities and other tertiary institutions# 8ith regard to the alleged unconstitutional burden) the respondent's policy did not prohibit the 5etitioners or hinder them from practicing) or belie ing or participating in any religions acti ities# The policy did not hinder any promotion of their creed or religion in Community with others under Article 2-D At page 1>) the learned !C/) goes on to state'

D0 am unable to agree) as suggested by the petitioners) that they ha e suffered any damage as a result of the respondent's) infle"ible conduct# 3n the other hand) the respondent has had a dialogue with the petitioners and other members of their faith on the policy) with a iew to finding a possible solution to the respondent's problem) but the petitioners did not consider the alternati es offered to them satisfactory# The respondent's policy complained of by the petitioners was fair and its students including the petitioners oluntarily 1oined the $ni ersity# The pro isions of the constitution allegedly iolated by the respondent must be considered together with those of the rest of the student population# The effect of the respondent's policy did not impede the obser ance of the petitioners religions principles# There was no threat or academic detriment to the petitionersE if any it was selfFimposed because the petitioners had a choice) it was up to them to ta&e the offer or re1ect it#D *Cmphasis added+#

0n my iew) the learned !#C# /ustice properly addressed herself to the law and the facts of the case and 0 see no misdirection on her part# Articles 20) 2, and 20 of the Constitution must be read together with article 92# 0t is pertinent to set out the pro ision of Article 92*1+# D0n the en1oyment of the rights and freedoms prescribed in this chapter) no person shall pre1udice the fundamental or other human rights and freedoms of others or the 5ublic interestD *emphasis mine+# 3b1ecti e N7000 of the =ational 3b1ecti es and !irecti e 5rinciples of State 5olicy) which are supposed to help us interpret the Constitution states) inter alia) as follows' i# DThe State shall ta&e appropriate measures to afford e ery citiAen equal opportunity to attain the highest educational standard possibleD# ii# 0ndi iduals) religious bodies and other nonFgo ernmental 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#D The right to education which is enshrined in Article 20 must be loo&ed at in the conte"t of the abo e principle# The $ni ersities and 3ther Tertiary 0nstitutions Act) under which the respondent's policy and regulations are based) must also be loo&ed at in that conte"t# The affida it e idence of 5rof# Ssebuwufu clearly brought out how the policy has positi ely affected the ob1ecti e of gi ing greater access to uni ersity education to more citiAens than before and at reasonable cost# This) to me) is the type of Dpublic interestD that the framers of the Constitution had in mind in enacting Article 92*1+# Although Dpublic interestD is not defined in the Constitution) one may find an instructi e definition in %lac&'s 4aw !ictionary 6th Cdition' DSomething in which the public) the community at large) has some pecuniary interest) or some interest by which their legal rights or liabilities are affected 0nterest shared by citiAens generally in affairs of local) state or national go ernment#D 0n my iew) the policy of the respondent was meant to ser e 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 en1oyed irrespecti e of the negati e effects that may ha e on the public interest) i#e# irrespecti e of the implications for the integrity of the e"aminations) the costs to the respondent or the o erall costs to the other students# They do not accept the accommodation offered to them by the respondent# 0n my iew article 92*1+ was ali e to this type of situation so that the appellants ought to ha e &nown that their en1oyment of their right to religion or to education was not absolute# 0t had to ta&e into account the rights of others as well as the public interest# 0t is in that conte"t that the learned /ustices of the Constitutional Court suggested that the appellants had a choice to go to other institutions where their interests could be better accommodatedE 0 do not agree with Counsel for the appellants that this amounted to as&ing the appellants to wai e their right to freedom of religion or religious practice# All the rele ant pro isions of the Constitution had to be loo&ed at as a whole) which the learned /ustices of

Appeal did# 0n my iew) the Syndicate case is distinguishable from the present case# The appellants were not required at any time to wai e their right to freedom of religion# They could ha e chosen another institution or accepted the accommodation offered by the respondent# 0 therefore hold that this ground of appeal has no merit and ought to fail# @rounds 2 and 9 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 1udgment of Twinomu1uni) /A# <e based his criticism on the authority of the !rug (art Case *supra+# The material part of that 1udgment *at page 26,+ reads' D.reedom in a broad sense embraces both the absence of coercion and constraint) and the right to manifest belief and practices# .reedom means that) sub1ect 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 conscienceD# 3n the facts and e idence of this case) 0 do not see that the appellants were being coerced into anything# They were being reminded that they &new 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 ery important and deser es consideration# 8ere the sincerity of the appellants' belief questioned in any wayM# 0n the Syndicate case) *supra+ it was stated at page 662' D.reedom of religionD consists of the freedom to underta&e practices and beliefs) ha ing a ne"us with religion) in which an indi idual demonstrates her or she sincerely belie es or is sincerely underta&ing in order to connect with the di ine or as a function of his or her spiritual faith) irrespecti e 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 sub1ecti e understanding of freedom of religion# As such) a claimant need not show some sort of ob1ecti e religions obligation) requirement or precept to in o&e freedom of religion# 0t is the religions or spiritual essence of an action) not any mandatory or percei edFasFmandatory nature of its obser ance 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 1udicially interpret and determine the content of a sub1ecti e 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#D*Cmphasis mine+# The abo e guidelines are ery useful in considering whether in this case the sincerity of the appellants' beliefs was put into question# The appellants filed affida its in which they stated that as Se enth !ay Ad entists they sincerely belie ed that @od's commandments required complete rest from doing wor& on the Sabbath# To do any wor& amounted to sin for which one would be

condemned to hell# 0ndeed) to me) it is indicati e of the sincerity with which they held this belief that they were prepared to postpone e"aminations and ris& repeating a year for the sa&e of their beliefs# 0n my iew no Court or anyone else should question this) nor did anyone question it# The problem seems to ha e come from !r# Ga&embo who testified as an e"pert on the beliefs of the appellants# 0n his affida it) !r# Ga&embo attached certain literature including the <oly %ible to pro e that the Sabbath is a day of total rest without any wor& at all# This in ited the legal officer of the respondent) =abawesi) to file an affida it in reply to show that in the %ible there were e"ceptions to wor& on the Sabbath) gi en by /esus Christ himself# 0t is this %ible that Twinomu1uni /A) quoted) in his 1udgment) to show that indeed the %ible does contain e"ceptions to the rule that no wor& should be done on Sabbath# 0n my iew) the Constitutional Court should ha e accepted the affida it in re1oinder of !r# Ga&embo whereby he e"plained away) according to the Se enth !ay Ad entists beliefs) the supposed e"ceptions as not being e"ceptions within their faith# Court cannot tell the appellants what they should belie e# 0t is what they belie e that is important) and 0 am satisfied that in this case the sincerity of that belief was not under criticism# 0n any e ent references to the %ible did not affect the outcome of the case since the /ustices held that the policy and regulations of the respondent were not inconsistent with or in iolation of Articles 20) 2, or 20 of the Constitution for reasons other than sincerity of belief# 0t is important for the appellants and other members of society to appreciate that the rights and freedoms of the indi idual in respect of religion or education enshrined in the constitution are not absolute# They are en1oyed within certain acceptable limitations en isaged within the Constitution itself) and also in the conte"t of a person's own duty to the society# At a time when there is a stated national ob1ecti e to gi e more citiAens access to uni ersity education at affordable costs) and when there is clear e idence that the policy of the respondent is promoting that ob1ecti e) there is need to balance the rights of indi iduals with the national good or public interest so that reasonable accommodation is accorded to both concepts# 0t is not in the public interest for a person to emphasiAe his or her own freedom or right irrespecti e of how this impacts on the rest of society# To say that e"aminations be held between -#20 p#m and ,#00 p#m which is the time for e ening classes) as stated in the affida it of 0ran&unda) but without ta&ing into account what happens to those classes) or how this switch will affect the uni ersity administrati ely or costwise) is in my iew) not being cognisant of the public interest# 0n my opinion the Constitutional Court was right to belie e the affida it of the 7ice Chancellor in that regard# Therefore grounds 2 and 9 of the appeal ought to fail# 3n ground 6) counsel submitted that the /ustices of the Constitutional Court did not properly e aluate the e idence# <e asserted that had they properly e aluated the e idence in the affida its in re1oinder by the appellants) the court would ha e found that the appellants and members of their faith could ha e been accommodated# 0 ha e already co ered some aspects of this ground# The court considered the affida its of the appellants alongside the affida its filed by the respondent) particularly the affida its of the 7ice Chancellor whose e idence) court obser ed) was not contro erted# The court considered all the e idence in the conte"t of the pro isions of the Constitution being read together for a purposi e and harmonious interpretation of the Constitution# Court came to the conclusion that there was

great public interest at sta&e and that there was no inconsistency with the Constitution# The suggested methods of accommodation by the appellants) such as that they should be loc&ed up during e"aminations) were considered to be unwor&able# The respondent) on the other hand had offered accommodation to the appellants which they refused# 0 find no alid reasons for this court to interfere with the findings of the Constitutional Court# @round 6 should also fail# 0n the result) 0 would dismiss this appeal# <owe er since this was a matter of public interest) 0 would ma&e no orders as to costs#