“Revisiting the Basic Structure Doctrine and Its Efficacy in

the Case Analysis of the Male Mabirizi Kiwanuka & Others

v. Attorney General Constitutional Appeal No. 2 of 2018”.

“To my understanding, the Basic Structure doctrine may be equated to a

family house. It must have a strong foundation, strong pillars, strong
weight-bearing walls, and strong trusses to support the roof. The roof
could be grass thatch, as happens in many of our homesteads. The roof
could be iron sheets of particular gauge. The iron sheets could be of
different colours. If the wind blew away part or all of the roof, the basic
structure should remain and the next day the family can put the roof back.
But if the weight bearing pillars were undermined or removed, the whole
structure would collapse. It would not be a dwelling house any more. –
Per Katureeba Chief Justice of the Supreme Court in the Consolidated
Constitutional Appeal No. 2 of 2018 in the case of Male Mabirizi
Kiwanuka & Others v. Attorney General. At pg. 12 of 102

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TABLE OF CONTENTS
ABSTRACT. ............................................................................................ 3
INTRODUCTION AND BACKGROUND OF THE CASE. .............. 5
BACKGROUND OF THE CASE. ......................................................... 5
HOLING OF Katureeba CJ ON THE BASIC STRUCTURE
DOCTRINE. ............................................................................................. 8
HOW DOES THE UGANDAN CONSTITUTION CATER FOR
THE BASIC STRUCTURE DOCTRINE? ......................................... 11
Personal Analysis ................................................................................... 13
WHAT ENTAILS THE BASIC STRUCTURE IN THE UGANDAN
CONSTITUTION? ................................................................................ 16
THE CHIEF JUSTICE’S REFERENCE FROM JUSTICE
KENNETH KAKURU’S (JCC-RIP) BREAKDOWN OF WHAT IS
THE BASIC STRUCTURE DOCTRINE? ......................................... 20
WHETHER THE REMOVAL OF AGE LIMITS VIOLATE THE
BASIC STRUCTURE OF THE CONSTITUTION? ........................ 22
THE OPINION OF Tibatemwa Ekirikubinza JSC ............................. 24
WHAT CONSTITUTES THE BASIC STRUCTURE DOCTRINE
ACCORDING TO MWANGUSYA JSC,.............................................. 29
WHAT CONSTITUTES THE BASIC STRUCTURE DOCTRINE
ACCORDING TO MUGAMBA JSC, .................................................. 35
CONCLUSION ...................................................................................... 36

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ABSTRACT.
The Basic Structure Doctrine has long been a cornerstone of
constitutional jurisprudence, has significantly influenced legal systems
worldwide, it is a fundamental legal concept that originated in India. It
was enunciated by the Supreme Court of India in the landmark case
of Kesavananda Bharati v. The State of Kerala (Civil) 135 of
1970;(A.I.R 1973 SC 1461) Vol 5 Tab DD page 64, where S.M. Sikri,
C. J held that, “This doctrine asserts that certain essential features of a
constitution cannot be altered or amended by the legislature, even if the
constitution itself provides for amendments. These core features form the
bedrock of the constitutional framework and are immune to ordinary
legislative changes. The basic structure may be said to consist of the
following features: 1. Supremacy of the Constitution; 2. Republican and
Democratic form of Government; 3. Secular character of the Constitution;
4. Separation of Powers between the Executive; and 5. Federal character
of the Constitution.”

This article revisits the landmark case of Male Mabirizi Kiwanuka &
Ors v Attorney General Constitutional Appeal No. 2 of 2018, a pivotal
moment in Ugandan legal history adjudicated by the Supreme Court.

This case analysis delves into the historical context and significance of
the case within Ugandan legal discourse, examining the Basic Structure
Doctrine's role in safeguarding constitutional integrity.

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The article provides a detailed overview of the Male Mabirizi Kiwanuka
appeal, highlighting the Constitutional Court's pronouncements and the
subsequent Supreme Court ruling.

Additionally, we explore the origins, evolution, and doctrinal

underpinnings of the Basic Structure Doctrine, emphasizing its
centrality in preserving fundamental constitutional tenets.

The efficacy of the doctrine in constitutional interpretation is scrutinized,

assessing its impact on maintaining the constitutional equilibrium.

The article concludes by imparting insights for legal practitioners,

scholars, and policymakers, reflecting on the enduring relevance of the
Basic Structure Doctrine in a dynamic legal landscape.

This intellectual journey bridges theory and practice, unraveling the

intricate threads that bind constitutionalism, justice, and societal
aspirations, inviting readers to revisit and reevaluate the very foundations
of constitutional governance.

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INTRODUCTION AND BACKGROUND OF THE CASE.
In the case of Male Mabirizi Kiwanuka & Others v. Attorney General,
several constitutional petitions were brought before the Constitutional
Court of Uganda, Male H. Mabirizi filed Constitutional Petition No.
49/2017, Uganda Law Society filed Constitutional Petition No.
03/2018, Other petitioners included Hon. Gerald Kafureeka
Karuhanga, Hon. Jonathan Odur, Hon. Munyagwa S.
Mubarak, Hon. Allan Ssewanyana, Hon. Ssemujju Ibrahim
Nganda, Hon. Winifred Kiiza, Prosper Businge, Herbert
Mugisa, Thomas Mugara Guma, and Pastor Vincent Sande in various
petitions. The Attorney General represented the respondents.

BACKGROUND OF THE CASE.

In 2017, Hon. Raphael Magyezi, a member of the 10th Parliament of
Uganda, moved a motion seeking leave to table a private member’s Bill
to amend the Constitution.

At the center of this analysis, lies the Basic Structure Doctrine—a doctrine
that transcends mere legal theory, it grapples with the fundamental
question: Can the core tenets of our constitution be altered at will? or do
they constitute an unchangeable foundation safeguarding the essence of
democracy?

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This analysis focuses on the decisions of learned justices—Katureebe CJ,
Mugamba JSC, and Prof. Tibatemwa JSC—weighing in on their
approach of this daunting task that is to determine whether the Basic
Structure Doctrine is engrained in Uganda’s constitution.

The exploration delved into the existence and embodiment of the doctrine
within the constitutional text, questioned which provisions acknowledged
its presence, and scrutinized Parliament's power to amend the immutable
bedrock of the constitution.

This article revisits the annals of legal history, dissecting the “Age-limit”
case and unraveling the threads of constitutional restraint, the echoes of
this judgment resonate far beyond the courtroom—a testament to the
enduring struggle between constitutional fidelity and the exigencies of
governance.

The background of this case emanates from an constitutional appeal

which arose from the decision of the constitutional headed by (DCJ
Owiny Dollo as he then was), Remmy Kasule JCC, Kenneth Kakuru JCC
(RIP), Musoke and Cheborion JCC in which the applicants sought to
challenge the Constitution (amendment) Act repealing Article 102(b) of
the 1995 Constitution of Uganda as amended removing the age limit
qualification to stand for President of Uganda, arguing inter alia that the
amendment violated the basic structure doctrine.

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Suffice to state the briefly, in 2017, Hon. Raphael Magyezi, a member of
the 10th Parliament of the Republic of Uganda, sought leave to table a
private member’s Bill to amend the Constitution, specifically Article 102
(b), lifting the Presidential age limit. The Bill, after amendments, became
the Constitution (Amendment) Act (No. 1) of 2018.

Five Constitutional Petitions challenged its validity. Key issues included

the extension of parliamentary and local government terms, alleged
violence during enactment, failure to observe parliamentary rules,
reintroduction of term limits, harmonizing parliamentary and presidential
terms, and lifting the age limit.

The judges had varying opinions. Notably, Deputy Chief Justice Owinyi
Dollo (as he then was) found the two-year extension of MPs
unconstitutional but upheld the age limit amendment.

Justice Musoke deemed the extension unconstitutional and supported the

age limit amendment. Justice Barishaki nullified the extension but upheld
the age limit amendment. Justice Kasule found the extension illegal and
supported the age limit amendment. Only Justice Kakuru (RIP) dissented,
declaring the age limit amendment unconstitutional.

The court's decision generated debate, with critics arguing it failed to

safeguard the basic structure doctrine thus leading this appeal which was
the Central issue in the Supreme Court as to whether the learned justices

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of the constitutional court misdirected themselves on the application of
the basic structure doctrine.

HOLING OF Katureeba CJ ON THE BASIC STRUCTURE

DOCTRINE.
In his Judgment on pg.3 the Chief Justice gave a historical backdrop of
what the basic structure doctrine is and stated as follows;

“The basic structure doctrine is a judge-made Indian principle stating

that a country’s Constitution has certain basic features that cannot
be amended by its legislative body. The amendment of such features
would result in drastic changes to the Constitution thus rendering it
unrecognizable. This doctrine was first affirmed by a German jurist
known as Professor Conrad Dietrich. The doctrine was then
entrenched in the constitutional jurisprudence of India in the 1960s
and 1970s which has since fundamentally influenced the development
of constitutionalism and rule of law in a number of democracies
across the world.”

The learned Justice further added that the parameters of the doctrine have
been laid out in a number of decided cases but the most profound case is
Kesavananda Bharati Versus State of Kerala, AIR 1973 SC the
Supreme Court of India stated that:

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“According to the doctrine, the amendment power of Parliament is not
unlimited; it does not include the power to abrogate or change the
identity of the constitution or its basic features.” The Court went on to
rule that while Parliament has wide powers to amend the Constitution, it
did not have the power to destroy or emasculate the basic elements or
fundamental features of the Constitution. The Supreme Court declared
that the basic structure or features of the Constitution rest on the basic
foundation of the Constitution.

The basic foundation of the Constitution is the dignity and the freedom
of its citizens which is of supreme importance and cannot be destroyed
by any legislation made by the Parliament. (See paragraphs 316 and 317
of the decision in Kesavananda Bharati).

The Supreme Court of India further elucidated on the said doctrine in the
case of Minerva Mills v. Union of India, AIR 1980 SC 1789, where court
held that Parliament has no power to repeal, abrogate or destroy basic
or essential features of a constitution. The Court went further to hold
that the claim of any particular feature of the Constitution to be a
“basic” feature would be determined by the Court in each case that
comes before it.

The learned justice noted that this doctrine has also been instrumental in
shaping the constitutional jurisprudence of different countries across the

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world such as Bangladesh, South Africa, Kenya, Taiwan, Thailand,
Argentina, Belize, Colombia; etc

Katureeba CJ giving detailed persuasive legal precedents observed,

“From the above decided cases, it comes out clearly that in interpreting
a constitution, the history of and the prevailing circumstances in a
given country ought to be taken into account. As such, it is true that
the question of whether or not the doctrine of basic structure applies
depends on the constitutional history and the constitutional structure
of each country. As was underscored by the Justices in the
Constitutional Court, each Constitution is a product of historical
events that brought about its existence.

He further affirmed the position of Kasule JCC in regards to the historical

perspective in regards to the Basic Structure Doctrine and held as follows,
In an earlier case decided by the Constitutional Court of Uganda: Saleh
Kamba & others Vs. Attorney General & others, Constitutional
Petition No. 16 of 2013; Kasule JCC stated as follows:

“Therefore from the historical perspective, the Constitution is to be

interpreted in such a way that promotes the growth of democratic values
and practices, while at the same time doing away or restricting those
aspects of governance that are likely to return Uganda to a one party
state and/ or make in-roads in the enjoyment of the basic human rights
and freedoms of conscience, expression, assembly and association…”

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HOW DOES THE UGANDAN CONSTITUTION CATER
FOR THE BASIC STRUCTURE DOCTRINE?
The learned CJ had this to say;

In Uganda, I am of the view that the basic structure does find its roots
in the 1995 Constitution. I am in agreement with the finding by the
Constitutional Court that the principal character of the 1995
Constitution, which constitutes its structural pillars, includes such
constitutional principles as the sovereignty of the people, the
Constitution as the supreme legal instrument, democratic governance
and practices, a unitary state, separation of powers between the
Executive, Parliament and the Judiciary, Bill of Rights ensuring
respect for and observance of fundamental rights and judicial
independence.

The pillars of the 1995 Constitution are rooted in the preamble to the
Constitution. The Preamble of the 1995 Constitution captures the
basis for the provisions of the Constitution in so far as it gives a
historical context in which the Constitution was being promulgated.
One has to visualize what the framers of the Constitution had in mind
when they wrote: “WE THE PEOPLE OF UGANDA: RECALLING
our history which has been characterized by political and
constitutional instability; RECOGNISING our struggles against the
forces of tyranny, oppression and exploitation; COMMITTED to

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building a better future by establishing a social-economic and
political order through a popular and durable national Constitution
based on the principles of unity, peace, equality, democracy, freedom,
social justice and progress; EXERCISING our sovereign and
inalienable right to determine the form of governance for our
Country and having fully participated in the Constitution-making
process; NOTING that a Constituent Assembly was established to
represent us to debate the Draft Constitution prepared by the Uganda
Constitutional Commission and to adopt and enact a Constitution of
Uganda; DO HEREBY, in and through this Constituent Assembly
solemnly adopt, enact and give to ourselves and our posterity, this
Constitution of the Republic of Uganda.”

The learned CJ took note of the learned Justices of the Constitutional

Court, each, gave an elaborate political history of Uganda which was
characterized by political treachery, military coups, gross violation of
human rights, emasculation of institutions such as Parliament, the
Judiciary and the marginalization of the people etc
Thus noted that, this, in my view, is what the framers of the Constitution
must have had in mind when they wrote the Constitution. It is the reason
Article 1 of the Constitution was written the way it was – putting the
people at the centre of everything and giving all political power to the
people. But it is also important to note that the same article 1(1) states
that the people will exercise their power in accordance with the

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Constitution. This means that the Constitution reigns supreme over all
people and all organs of the State. All must act in accordance with the
Constitution.

Personal Analysis
The learned Chief Justice (CJ) astutely acknowledged the historical
tapestry woven by the Constitutional Court Justices—a vivid tableau of
Uganda’s tumultuous past. Within this canvas, political treachery,
military coups, and human rights violations cast long shadows.
Institutions like Parliament and the Judiciary bore witness to both
resilience and vulnerability.

In contemplating the framers’ intent, the CJ discerned a foundational truth:

Article 1 of the Constitution placed the people at its epicenter. Their
collective will, expressed through constitutional provisions, held sway.
The Constitution, meticulously crafted, bestowed political power upon the
populace—a sacred trust.

Yet, the same Article 1(1) tempered this empowerment. It stipulated that
the people’s exercise of power must align with the Constitution—a
covenant binding all. Herein lies the crux: The Constitution reigns
supreme, transcending individuals, institutions, and transient political
currents.

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The Basic Structure Doctrine, akin to a sentinel, guards against
constitutional erosion. It identifies essential features—the bedrock—
beyond the reach of ordinary amendments. By doing so, it ensures that the
Constitution endures, resilient and unyielding as elaborated by Mwondah
JSC in the case of David Wesley Tusingwire Vs. The Attorney General
CONSTITUTIONAL APPEAL NO. 4 OF 2016 that;

“Most importantly in my view also it would be contrary to

the Sui Generis Rule which essentially means “in a class of
its own. The constitution stands on a very different footing
from other legislation for the most part (but not always)
though the principles of interpretation are the same to a
large extent. It is the only reason why all other laws are
subjected to it and why they are declared null and void if
inconsistent with it. Ref. Article 2 of our Constitution. It is
also the reason why the language used is much broader and
encompassing than that used in other statutes. It is intended
to cover rights and freedoms for all people without
discrimination because it is made for present generations
and those unborn.

The case of Unity Dow v Attorney General of Botswana

[1992] LRC (Const) 623 at page 668 it was remarked “the
Constitution is the Supreme Law of the land and is meant to

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 serve not only this generation but yet unborn. It cannot
allow to be a lifeless museum piece. On the other hand
Courts must breath life into it as occasion may arise to
assure the healthy growth of the state through it. We must
not shy away from the basic fact that while particular
construction of a Constitutional provision may be able to
meet the designs of the society of a certain age ... it is the
primary duty of Judges to make the Constitution grow and
develop in order to meet the just demands and aspirations of
an ever developing society which is part of the wider society
governed by acceptable concepts of human dignity.”

The Constitution should be able to serve for a long time

while accommodating the new changes the world has to
offer without derogating from the original framers intent.
This was further witnessed in Hunter v. Southern Inc [27]
“A Constitution must be capable o f growth and
development over time to met social, political and historical
realities often unimagined by its framers.

Though the above case is only persuasive it is good case law.”

Therefore, as Uganda navigates its constitutional voyage, the tension

persists. The delicate balance between democratic empowerment and
constitutional fidelity remains precarious. The Constitution, like a

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compass, guides our actions. All organs of the State—judiciary,
legislature, and executive—must harmonize their steps with its dictates.
The question as to whether all organs of government have lived upto the
aforementioned position remains legal fiction since we are in the error of
political patronage.

WHAT ENTAILS THE BASIC STRUCTURE IN THE

UGANDAN CONSTITUTION?
The learned CJ noted that Article 1(3) emphasizes the Constitution as
the source of “all power and authority of Government and its organs”.
At the same time, the clause emphasizes that the Constitution itself derives
its authority from the people.

He further adds that, it is important to note that, even here, the emphasis
is that 10 by this Constitution, the people consent to be governed in
accordance with the Constitution. Clause 4 spells out how the people
will be governed. It states: “The people shall express their will and
consent on who shall govern them and how they should be governed,
through regular, free and fair elections of their representatives or
through referenda.

In my view, this article goes a very long way to lay the foundation for the
Constitutional governance of the Country by the people on the basis of
free and fair elections or referenda.

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 1. To me this is the first pillar on the basic structure of our
Constitution, based on the concerns in the Preamble. So the
people have a right to choose their representatives to whom
certain powers have been delegated under the Constitution. But
a power has been reserved to demand for referenda.

He thus observed the amendability of the Constitution of Uganda,

emphasizing Article 255, amended by the Constitution (Amendment)
Act No. 2 of 2005. It outlines the provisions for holding referenda, either
initiated by citizens or upon government reference on contentious matters.
The referendum results are binding, except for matters related to
fundamental rights and freedoms guaranteed under Chapter Four of the
Constitution, and the courts retain the power to question the validity of
the referendum. The underlying principle is that the Constitution is
amendable through parliamentary actions, referenda involving citizens or
district councils, but fundamental rights are inherent and not subject to a
referendum.

2. The next pillar of the basic structure of our Constitution is Article

2 which provides for the Supremacy of the Constitution. I have
decided to emphasize Article 1 of the Constitution because it is
relevant to this Constitutional Appeal in so far as the appellants
have raised the issue of the Basic Structure of the Constitution and
averred that the Constitution (Amendment) Act violates that Basic

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 Structure. Indeed even the Speaker, when she was sending out the
Members of Parliament to go for consultations, she did state that
the Bill touched on Article 1 of the Constitution.

The learned Chief Justice further observed that There are other
fundamental Pillars of the Uganda Constitution as found by the
learned Justices of the Constitutional Court. All the Justices agreed
that the basic structure doctrine applied to Uganda. The only point of
departure seems to be where they point to those doubly entrenched
provisions, i.e. those requiring referendum or District Council
resolutions as the only ones that form the basic structure, and the rest
which Parliament may amend on its own as not being part of the basic
structure.

That while certain provisions in the Constitution may not have double
entrenchment under Article 260 or 261, they can still be fundamental
parts of the constitutional structure. For example of Article 44 in
Chapter 4, which concerns non-derogable rights. Though amendable
through a referendum as per Article 260, the entire Chapter 4, dealing
with the protection and promotion of fundamental rights, is considered
an essential pillar of the Constitution and may not be affected by the
results of a referendum, according to Article 255(4).

The CJ likened the basic structure to a family house and held as

followed

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To my understanding, the Basic Structure doctrine may be equated
to a family house. It must have a strong foundation, strong pillars,
strong weight-bearing walls, strong trusses to support the roof. The
roof could be grass thatch, as happens in many of our homesteads.
The roof could be iron sheets of particular gauge. The iron sheets
could be of different colours. If the wind blew away part or all of the
roof, the basic structure should remain and the next day the family
can put the roof back. But if the weight bearing pillars were
undermined or removed, the whole structure would collapse. It would
not be a dwelling house any more.

The question then is which provisions of the Constitution can be

equated to a pillar in a House Structure and which can be equated to
iron sheets or doors which can be removed and replaced with relative
ease but without affecting the basic structure

3. The CJ was of the view that the other fundamental pillars, apart from
Article 1, are Article 5 and 98. Article 5(1) which state that
“Uganda is one Sovereign State and a Republic.” Although this is
not doubly entrenched under Article 260, Parliament would not
change this without changing the character of the Constitution. But
does that mean that the people themselves would not change this
if they so wished? This is where article 255 may come in i.e.
demand for a referendum.

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 He further states that Article 98 of the Constitution establishes the
office of a President in Uganda, and Article 103(1) specifies that the
President is elected through universal adult suffrage via a secret
ballot. That changing this fundamental structure, such as introducing
a Prime Minister or having a President appointed by Parliament,
would constitute a departure from the basic constitutional
framework. That the age of the President, whether 40 or 75 years,
is not considered a fundamental pillar of the Constitution.
Does that mean therefore that those identified pillars are cast in
stone and can never be amended? My answer is no. In light of
Article 255, those articles can be amended if the people so desire
and call for a referendum; only with the exception of matters set
out under article 255 (4) thereof. This would be in line with article
1 of the constitution.

THE CHIEF JUSTICE’S REFERENCE FROM JUSTICE

KENNETH KAKURU’S (JCC-RIP) BREAKDOWN OF
WHAT IS THE BASIC STRUCTURE DOCTRINE?
The learned CJ went at length appraising the various decisions of the
learned justices in the constitutional court, but a deeper for Justice
Kenneth Kakuru’s (JCC-RIP) breakdown of what amounts to a basic
structure doctrine and held as follows;

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According to Kakuru JCC, as far as he could discern, the
basic structure of the 1995 Constitution was made of the
following pillars:

a) The sovereignty of the people of Uganda and their

inalienable right to determine the form of
governance for the Country.
b) The Supremacy of the Constitution as an
embodiment of the sovereign will of the people,
through regular free and fair elections at all levels of
political leadership.
c) Political order through adherence to a popular and
durable Constitution.
d) Political and constitutional stability based on
principles of unity, peace, equality, democracy,
freedom, social justice and public participation.
e) Arising from above, Rule of law, observance of
human rights, regular free and fair elections, public
participation in decision making at all levels,
separation of powers and accountability of the
government to the people.
f) Non-derogable rights and freedoms and other rights
set out in the extended and expanded Bill of Rights
and the recognition of the fact that fundamental

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 Rights and Freedoms are inherent and not granted
by the State.
g) Land belongs to the people and not to the
government and as such government cannot deprive
people of their land without their consent.
h) Natural Resources are held by government in trust
for the people and do not belong to government.
i) Duty of every citizen to defend the Constitution from
being suspended, overthrown, abrogated or
amended contrary to its provisions.
j) Parliament cannot make a law legalizing a one-party
state or reversing a decision of a Court of law as to
deprive a party.

WHETHER THE REMOVAL OF AGE LIMITS VIOLATE

THE BASIC STRUCTURE OF THE CONSTITUTION?
The CJ had this to say,

No evidence was adduced whatsoever to show that a person below

35 years of age, as long as they are adults, or a person of 75 years
has an inherent inability to be President. No examples were cited to

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us from those countries that have applied the basic structure
doctrine whether they have provisions for age limits of their leaders.

On the contrary at this very moment across the world, we

have countries that have defied that school of thought. In
Malaysia, in May 2018, Prime Minister Mahathir Mohamad
was popularly elected at the age of 92, becoming the oldest
political leader in the World. And of greater interest to know
is the fact that he is a person who had before led that country,
retired and left others to take over. The people felt he should
return to power and they indeed re-elected him. In Austria,
Sebastian Kurz, the current Chancellor was elected in
December 2017 at a very young age of 31 years. In British
history, William Pitt the Younger, became the youngest
British Prime Minister in 1783 at the age of 24 years. He left
office in 1801 but was re-elected in 1804 and served up to
1806. On the negative side, neither Hitler nor Idi Amin who
committed such heinous atrocities were 75 years or above, or
below 35 years

All the above examples suggest that the problem is not the age
of the leader. None of the people who terrorized Uganda and
the subject of the Preamble were anywhere near 75 years of

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 age. On the other hand the Preamble does express the desire
to promote equality.

THE OPINION OF Tibatemwa Ekirikubinza JSC

In her Judgment noted that the basic structure doctrine is to the
effect that although parliament may have power to amend a
country's constitution, such powers are limited so as not to amend
to bring about a new constitutional order as that can only be done
with the consent of the citizenry. It deals with principles and values
inherent in the constitution; that's to say the spirit of the constitution
and with universally accepted principles such as democracy, human
dignity and people's sovereignty.

She went on to observe that the basic structure doctrine being judge made
law, whether a particular provision is a basic feature of the constitution
can only be determined by the court in each case that comes before it.
There's therefore to her no exhaustive list of what constitutes the basic
structure of Uganda's constitution.

WHAT CONSTITUTES THE BASIC STRUCTURE OF THE

CONSTITUTION ACCORDING TO Tibatemwa Ekirikubinza JSC

What constitutes the Basic Structure of a Constitution is not

exclusively explicit, it is also implicit. The Basic Structure
Doctrine deals with principles and values inherent in a

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Constitution. It transcends procedural imperatives and its
essence cannot be reduced to procedural imperatives which
must be followed in amending a particular provision. The
import of the doctrine is that it communicates an implied
limitation on the power of Parliament to amend the
Constitution – the power to amend is not the same as the power
to re-write or replace a Constitution. There is therefore a direct
link between the Basic Structure Doctrine and the philosophy
of Constitutional replacement. The latter power is with the
people and not with the people’s representatives. The Basic
Structure Doctrine is concerned with the substance of a
particular provision and its linkages to the spirit or character
of the Constitution and with universally accepted principles
such as democracy, human dignity, and peoples’ sovereignty.

I posit that any article dealing with universally accepted human

is part of the Constitution’s fabric. I also posit that provisions
of the Constitution which inherently rest on the universally
acceptable principle of separation of powers between the
Judiciary, Parliament and the Executive - such as the
independence of the Judiciary - are part of the Constitution’s
basic structure.

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The list is long. And the question which should be asked is:
what is the bed rock, the purpose, the value inherent in a
particular provision? Would the amendment of this
particular provision contravene the spirit of the Constitution,
would it alter the character of the Constitution? In which
ways would the amendment of a particular provision for
example go against the aspirations of the people as espoused
in the preamble and in the National Objectives and Directive
Principles – both of which were necessitated by our sad
history?

I therefore agree with the appellant that to equate the doctrine

to the need for referenda is a narrow interpretation of the
doctrine. In the matter before us, the specific question to be
answered is: would the removal of the age restriction
regarding eligibility to stand for presidency and for the office
of District Chairperson change the character of the
Constitution? I must answer the question: can one say that
alteration of Article 102 (b) which set a minimum and
maximum age for presidency and Article 183 (2) (b) which set
age limits to who can stand for the office of District
Chairperson restricted run counter to the character of the 30
Constitution?

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Citing Liav Orgad International Journal of Constitutional Law, Vol
8, Issue 4, 714-738. on the role and nature of preamble in reflecting the
constitutional understandings of the framers, Tibatemwa Ekirikubinza
JSC said that the preamble to our constitution serves the purpose; and is a
kind Liav Orgad refers to as an interpretive preamble which is part of a
constitution's basic structure as was ruled by the Indian Supreme Court in
Kesavananda Bharati v State of Kerala-that the preamble is a key to
understanding the constitution and interpreting its clauses and together
with the fundamental rights and directive principles of state policy
constitute the core of the constitution. That the elements of the basic
features of the constitution were to be found in the preamble of the
constitution: which decision according to Tibatemwa Ekirikubinza JSC is
true of Uganda's constitution.

That the preamble according to Liav is a source of entrenchment and

therefore the authority of parliament to amend a specific provision in the
constitution must be tested against the principles in the preamble and also
the National Objectives and directive principles of state policy.

I am persuaded that the above is as true of Uganda’s

Constitution as it is for the Indian Constitution. Liav (ibid)
posits that Preambles are not only a source of rights and
powers but also of entrenchment. (My emphasis).

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It must therefore be concluded that the Preamble is part of
the Basic Structure of our Constitution and the authority of
Parliament to amend a specific provision in the Constitution
must be tested against the principles in the preamble.
Consequently, I must answer the question: can one say that
alteration of Articles 102 (b) … which set a minimum and
maximum age for presidency and LCV … run counter to the
character of the Constitution as represented in the preamble?

I posit that the import of the Preamble is that it places the

Constitution in a historical context. The Constitution was
enacted as a tool to protect the people of Uganda from the ills
of our sad history, a history characterised by tyranny,
oppression and exploitation. It is a history of political and
Constitutional instability. What is contained in the National
Objectives and Directive Principles of State are linked to the
said history. In the appeal before us, Democratic Principle (i)
and (ii) are relevant. Principle (i) provides that: The State
shall be based on democratic principles which empower and
encourage the active participation of all citizens at all levels
in their own governance. Democratic Principle (ii) provides
that: All the people of Uganda shall have access to leadership
positions at all levels, subject to the Constitution.

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 Even if I were to agree with what the appellant considers to
be the Basic Structure of Uganda’s Constitution, there is no
evidence to the effect that the tyranny, oppression and
exploitation suffered by Ugandans in the past was a result of
the leadership being in the hands of particular age groups.

I am unable to come to the conclusion that the impugned

amendment had the effect of reintroducing the Kelsenian
theory into our law or that the amendment violated the
sovereignty of the People.

It cannot be said that the impugned Section ignored the

supremacy of the Constitution. There is no evidence that
removing age restrictions in leadership positions would
violate the aspirations of Ugandans to build a society based
on democracy, a politically and constitutionally stable society.

I therefore hold that amending Article 102 (b) and 183 (2) (b)
did not violate the basic structure of Uganda’s Constitution

WHAT CONSTITUTES THE BASIC STRUCTURE

DOCTRINE ACCORDING TO MWANGUSYA JSC,
Justice Mwangusya went at length to define what constitutes the basic
structure doctrine and held that in the judgement of Kesavananda

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Bharati v. State of Kerala AIR 1973 SC 1461 there were six dissenters
out of the 13 judges that presided over the case.

One of the six dissenting judges, Hon. Justice A.N.Ray had this to say:

“Fundamental or basic principles can be changed. There

can be radical change in the Constitution like introducing
a Presidential system of government for a cabinet system or
a unitary system for a federal system. But such amendment
would in its wake bring all consequential changes for the
smooth working of the new system.(see paragragh 960)…

The problems of the times and the solutions of those

problems are considered at the time of framing the
Constitution. But those who frame the Constitution also
know that new and unforeseen problems may emerge, that
problems once considered important may lose their
importance, because priorities have changed; that solutions
to problems once considered right and inevitable are shown
to be wrong or to require considerable modification; that
judicial interpretation may rob certain provisions of their
intended effect; that public opinion may shift from one
philosophy of government to another…

The framers of the Constitution did not put any limitation

on the amending power because the end of a Constitution
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 is the safety, the greatness and wellbeing of the people.
Changes in the Constitution serve these great ends and
carry out the real purposes of the Constitution. (See para
987).

In quoting the above passage from judgment of Hon. Justice

A.N.Ray, Justices Tsekooko in the case of Paul k. Ssemogerere
and Ors v Attorney General Constitutional Appeal No.1 of
2002 stated that:-

“This passage indicates that written constitutions are

not static and are liable to be amended. There is an
obvious implication in this passage that courts have to
interpret constitutional provisions to bring the
constitution in line with current trends. Implicit in this
is the real possibility that one part of the constitution
can be harmonised with another part of the same
constitution.”

In the case of Rev. Christopher Mtikila v Attorney General Misc. Civil

25 Cause No. 10 of 2005, the Tanzanian Court of Appeal found:-

“we are definite that the courts are not the custodian of
the will of the people, that is the property of elected
members of parliament”, so if there are two or more
articles or portions of articles which cannot be
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 harmonised then it is parliament which will deal with
the matter and not the court unless power is expressly
given by the constitution.

On the doctrine of ‘basic structure’ of the Constitution,

the Court held in that case that: We agree with Prof.
Kabudi that that doctrine is nebulous, (meaning it is
misty, it is cloudy, it is hazy according to the dictionary)
as there is no agreed yardstick of what constitutes basic
structure of a constitution.”

That in the case of Kesavananda Bharati v. State of Kerala AIR 1973

SC 1461 from which the doctrine has its genesis, never came up with a
single structure that would be said to be a useful guide as to determining
as to which part/Articles of our constitution is amendable because it is
not part of the basic structure and which part/Articles cannot be
amended because to do so would lead to the destruction of the Basic
structure leading to total collapse of the constitution.

He thus observed that, “it can be easily discovered from above that each
of the above justices had his own understanding of what formed the
Basic structure of the Indian constitution at that time. There was no
unanimity as to what constituted the basic structure of the Indian
Constitution. The same can be seen by Ugandan Constitutional Court

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justices whose attempt to define what the basic structure of the Ugandan
constitution suffered the same fate as that of the Indian court.”

That throughout the trial at the Constitutional court and the appeal before
this court there was no suggestion that the Indian Constitution is the same
Model as our constitution because our constitution was structured
according to our history.

In our constitution there is the whole chapter eighteen with

the heading “Amendment of the Constitution”, under which
there are various Articles including: - Article 259
Amendment of the Constitution, Article 260 Amendments
requiring a referendum, Article 261 Amendments requiring
approval by district councils and Article 262 Amendments
by Parliament which provides:- A bill for an Act of
Parliament to amend any provision of the Constitution,
other than those referred to in articles 260 and 261 of this
Constitution, shall not be taken as passed unless it is
supported at the second and third readings by the votes of
not less than two thirds of all members of Parliament

These Articles give a framework within which the

constitution can be amended. I do not think that it is
necessary to agonize as to what the basic structure of the
constitution is.

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As I have already stated both the Indian Court and the
Constitutional court attempted to define what the basic
structure of the Indian and Ugandan Constitution is but it
was an exercise in futility.

My understanding of the basic structure doctrine is that

within this framework the constitution is amendable but it
can still be protected from compromise of its own foundation
and structure so that every amendment is harmonized with
the rest of the constitution and the wishes of the people of
Uganda.

The framework provided under Articles 259,260 and 261 of

the constitution should not be seen as a licence to the
Legislative arm of Government to amend the constitution
the way they wish. As to whether this amendment was part
of the basic structure it was adequately addressed by the
Constitutional court which came to the conclusion that the
removal of the age limit would not affect the basic structure
of the constitution and I agree with that finding. The issue
is answered in the negative.

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WHAT CONSTITUTES THE BASIC STRUCTURE
DOCTRINE ACCORDING TO MUGAMBA JSC,
According to Mugamba JSC The doctrine of basic structure in a given
constitution is a derivative of Indian judicial experience and it defies
universal description. What forms the basic structure differs depending on
the country. That what forms the basic structure in a given constitution is
embedded in that particular constitution and that it is accompanied by the
intended rigidity, which is woven in the constitution and its mission is to
ensure that the constitution is not wantonly tampered with by way of
amendment.

Upholding the decision of the majority justices of the Constitutional court,

Mugamba JSC ruled that it is possible to amend the basic structure. He
cited the case of Premier Kwazulu Natal v President of the Republic
of South Africa that; "There is a procedure which is prescribed for the
amendment to the constitution and this procedure has to be followed.
If that is properly done, the amendment is constitutionally
unassailable. It may perhaps be that the purported amendment to the
constitution, following the formal procedures prescribed by the
constitution, but radically and fundamentally restructuring and
reorganizing the fundamental premises of the constitution, might not
qualify as an amendment at all.

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That the basic structure is amorphous and varies from case to case and
that he finds no specific provisions in the constitution that are so
sacrosanct that even if one followed provisions of the constitution it would
not be possible to amend them legitimately as that would be turning
human progress on its head.

CONCLUSION
In conclusion, The Supreme Court’s ruling in the Male Mabirizi
Kiwanuka v Attorney General case underscores the significance of
the Basic Structure Doctrine within Uganda’s constitutional framework.
Key elements, such as the preamble, the National Objectives and
Directive Principles of State Policy, and Chapter 4 (the Bill of Rights),
serve as guiding principles for identifying basic features of the
constitution.

The Justices’ opinions diverged on the scope of parliamentary powers

regarding constitutional amendments: Katureebe CJ and Tibatemwa
JSC unanimously held that amending basic features lies beyond the
legislative powers of parliament. Such amendments touch the spirit of the
constitution, akin to creating a new foundational document. The exclusive
authority for such transformative changes rests with the people. Whereas
Mugamba JSC asserted that parliament can legitimately amend basic
features. However, adherence to the prescribed amendment procedure
outlined in the grand norm (the Constitution) is essential. On the other
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hand Mwangusya JSC. Noted that Articles 259, 260, 261, and 262 of the
Constitution, which specify procedures for constitutional changes,
including referendums and approval by district councils. Are expressive
to the point that that there is no need to dwell on defining the basic
structure of the constitution, referencing the Indian Court and the
Constitutional court's futile attempts to do so. Thus the basic structure
doctrine allows for amendments within the constitutional framework of
Uganda while ensuring protection against compromising the
constitution's foundation and structure, aiming for harmony with the
overall constitution and the will of the people of Uganda.

By

FARIDAH TSWALIK (LLB 4 IUIU)

With Contributions from Waboga David-Legal Researcher

NOTE TO READERS

Thank you for reading this article. I hope you found it useful and informative. Please note that the
above analysis is intended for informational purposes only and does not constitute legal advice.

The information provided is based on publicly available sources and general principles of law as
of the date of the analysis. Laws and regulations may vary, and legal interpretations can change
over time. Readers are advised to consult with qualified legal professionals for advice tailored to
their specific circumstances. The author and the platform shall not be held responsible for any
inaccuracies, errors, or omissions in the content or for any actions taken in reliance on the
information provided.

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