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This column has thus far identified two faces of the ghost summoned by Constitutional Court of Uganda in its decision in Innocent Ngobi Ndiko and Others v Attorney General and Another (Constitutional Petition No.23 of 2020), that is to say: i) the subordination of constitutional principle to majoritarian considerations; and ii) an unprincipled failure, or unwillingness, to refer to the Court’s own relevant previous jurisprudence.
Today we examine a third face of the phantom, closely related to the first: the imposition of extra-constitutional fetters on the Court’s interpretative role, in this case the invocation of the ‘presumption of constitutionality’.
In her lead judgment (with which Justices Luswata, Kazibwe Kawumi and Mugenyi concurred), Justice Obura noted as follows: ‘I will also bear in mind the principle of presumption of constitutionality. Legislation is a function of Parliament and any challenge to it must be proved by the person who alleges the unconstitutionality … The Petitioners are seeking a declaration that the impugned provisions of the Divorce Act enacted by the Parliament of Uganda are inconsistent with some Articles of the Constitution.
The burden to prove the allegations made in this Petition therefore rests squarely with the Petitioners who must raise a prima facie case that a fundamental right or freedom has been contravened. Once this is established, the burden then shifts to the Respondents to rebut or justify the limitation …’ [at pages 20-21 of the decision].
In his concurring decision, Justice Kazibwe Kawumi further observed as follows: ‘The presumption of constitutionality of statutes is another tenet of constitutional interpretation the Courts have recognized and applied variously. The burden lies on the party who asserts that particular provisions in a statute depict a clear transgression of constitutional principles. [at page 7 of his decision]
To appreciate the true provenance – and import – of this asserted ‘presumption of constitutionality’ we need to trace its source in United States legal constitutional history. One of the earliest formulations of the idea is to be found in the 1798 US Supreme Court case of Calder v Bull (which was decided a mere five years before the seminal case of Marbury v Madison, in which the power of judicial review of legislative action was asserted by the Court).
In Calder, Justice Chase observed that if ever he were to declare legislative action to be inconsistent with the Constitution, he would only do that ‘in a very clear case’. [at page 395] Similarly, Justice Iredell noted that the authority of the US Supreme Court to declare a legislative act to be void was ‘of a delicate and awful nature’ and that the Court would ‘never resort to that authority, but in a clear and urgent case’.
[at page 399] We see here a Court unsure of itself, trying to find its place within a structure of government dominated by two other powerful branches – the Executive and Legislature. Incidentally, five years later, in Marbury v Madison (1803) Chief Justice Marshall did not express similar sentiments when he emphasized the Court’s power to review legislative action.
Indeed, to the contrary, he stressed the importance of recognizing constitutional, rather than parliamentary supremacy, noting: ‘The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written … The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it’.
Nonetheless, the ‘presumption of constitutionality’ would later be given some succour in the 1827 US Supreme Court case of Ogden v. Saunders in which Justice Washington offered the view that: ‘It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt.’
[at page 270] Another affirmation of the doctrine was apparent in the 1878 US Supreme Court Sinking-Fund Cases in which Chief Justice Waite observed: ‘…every possible presumption is in favour of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.’
[at page 718] In time, however, even the US Supreme Court recognized the danger of such excessive deference to legislative power, especially where certain constitutional rights were in issue. This turn is usually identified as starting in the 1938 case of United States v. Carolene Products.
After reiterating the presumption of constitutionality, Justice Stone added a footnote, the fourth in his judgment, which has since come to be acknowledged as one of the most famous, if not the most famous, one in constitutional law.
In that footnote, he observed: ‘There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth…
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation …
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.’
[at page 152, additional case citations omitted] This articulation provided the foundation for the emergence of a body of jurisprudence in which courts applied various levels of scrutiny to legislation, based on the nature of rights at stake.
Thus, in the 1969 US Supreme Court case of Kramer v. Union Free School District No. 15, Chief Justice Warren emphasized that the right which had been invoked before the Court (the right to vote) was of such a fundamental nature that the presumption of constitutionality – or judicial deference to legislative action (in which it might succeed if shown to have a ‘rational basis’) – had to give way to higher degree of scrutiny by the judicial branch.
Similarly, in his concurring opinion in the 1970 US Supreme Court case of Williams v Illinois Justice Harlan observed that: ‘… the presumption of regularity that comes with legislative judgment is one that is not equally acceptable in all instances, nor is it blind to the nature of the interests affected’
[at page 262] In particular, he emphasized that: ‘there are limits to the extent to which the presumption of constitutionality can be pressed where a “basic liberty” is concerned.’ In the same vein, he noted: ‘… the deference owed to legislative judgment is not the same in all cases … [T]his Court will squint hard at any legislation that deprives an individual of his liberty—his right to remain free’ [at page 263].
We can close this account of the history – and implications – of the ‘presumption of constitutionality’ – by citing the 1973 case of San Antonio Independent School District v Rodriguez in which Justice Stewart, in a concurring opinion, observed as follows: ‘Under the Equal Protection Clause, this presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently “suspect.”
Because of the historic purpose of the Fourteenth Amendment, the prime example of such a “suspect” classification is one that is based upon race … But there are other classifications that, at least in some settings, are also “suspect”—for example, those based upon national origin, alienage, indigency, or illegitimacy.
Moreover, quite apart from the Equal Protection Clause, a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law’s purpose or effect is to create any classifications.’
[at page 61 of his decision] Evidently, the ‘presumption of constitutionality’ was birthed by the US Supreme Court at a time in which it was most unsure of itself – a time when it had a crisis of identity (at best) or an inferiority complex (at worst).
Since then, it has been significantly curtailed – a trend necessitated by the imperative of the protection of fundamental human rights, particularly in circumstances in which the political process (and the political branches of government) could not be trusted to safeguard them.
It is most ironic then, that in 2025 in Innocent Ngobi Ndiko, the Constitutional Court of Uganda seems to be making a mistake first made by the US Supreme Court in 1798 – an error which the latter tribunal has since made significant and valiant efforts to correct and mitigate.
In the Uganda of 2025, the ‘presumption of constitutionality’ which the Constitutional Court of Uganda raised in Innocent Ngobi Ndiko stands on very flimsy legs. Indeed, if one has regard to both the letter of the 1995 Constitution, as well as its history and context, one quickly realizes that the doctrine might have no legs at all. In the first place, the ‘presumption’ has no express mention in the text of the 1995 Constitution.
This may be distinguished from at least two other presumptions found in Constitution, that is to say: i) the presumption of innocence (under Article 28 (3)(a)); and ii) the presumption of citizenship by birth applied to any child of not more than five years of age, found in Uganda, whose parents are not known (Article 11 (1)).
More fundamentally, the ‘presumption’ is inconsistent with a whole range of other constitutional provisions, especially those which specifically vest the Constitutional Court which the power, and duty, to interpret the Constitution.
We might have regard, in this instance, to the provisions of Article 137 (1) under whose terms the Constitutional Court shall determine ‘any question’ as to the interpretation of the Constitution.
Such questions, it is to be noted, may be brought, among other ways, by ‘a person’ [singular] who alleges that an Act of Parliament or any other law or anything in or done under the authority of any law or any act or omission by any person or authority is inconsistent with or in contravention of any [singular] provision of the Constitution [Article 137 (3)].
This may be read together with Article 2 (1) of the Constitution, under whose terms that document is expressed to be the supreme law of the land, with binding force on all authorities and persons in Uganda as well as Article 2 (2), to the effect that if any other law or custom is inconsistent with any of the provisions of the Constitution, the Constitution must prevail, and such other law or custom must, to the extent of the inconsistency, be void.
Where in any of these provisions is there even the slightest hint of a ‘presumption of constitutionality’? Why, in 2025, would the Constitutional Court of Uganda import into our constitutional jurisprudence the shadow of a doctrine which, as we have pointed out above, was born from a Court – the United States Supreme Court which was still finding its way at a time (1798) when even the power of judicial review of legislative action had not yet been entrenched.
This is especially so where even that Court has since acknowledged that this doctrine has to be set aside where fundamental human rights of the individual are at stake. The pernicious implications of the ‘presumption of constitutionality’ are even more clear when one has regard to our history as a country. From 1894 to 1962 there was effectively no Constitution under colonial rule (if one excepts the manifestly imperial documents that were the 1902 and 1920 Orders-in-Council).
There was no parliament for Uganda, from 1894 until 1920, when a Legislative Council was set up, and even then, Africans were only first represented in 1945. There were no elections for political office in Uganda from 1894 until 1958, just four years to independence.
The writer is senior lecturer and director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and International Law.
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