Freedom of Worship and Belief

8/13/2019 Freedom of Worship and Belief

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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

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9 4imanche "haron

9 5oera 1ilphine

9 3ansereo .uc (2ppellants)

;ersus

5aerere University (Respondent)

[Appeal from the decision of the Constitutional Court (Mukasa Kikonyogo, DCJ, Mpagi

Bahigeine, Berko, Tinomu!uni, and Kitum"a JJA# dated $%th &eptem"er $'' in Constitutional)etition *o + of $''-

1 August 2006

%U415-3+

This is an appeal against the decision of the Constitutional Court dismissing the appellant'spetition challenging the constitutionality of the respondent's policy and regulations which

required the appellants and other members of the Seenth !ay Adentist Church to attend

scheduled lectures and sit tests and e"aminations on Saturday which is their Sabbath contrary totheir fundamental beliefs# The central issue in this appeal is whether the respondent's policy and

regulations contraened the appellant's freedom of religion and the right to education as

guaranteed by the Constitution of $ganda#


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%ac&ground to the Appeal

The bac&ground to this appeal is as follows The appellants were members of the Seenth !ayAdentist Church who were at the material time students at the (a&erere $niersity) 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$niersity 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 eening as well as

e"ternal programmes# !ue to this policy) the respondent made regulations contained in the

.reshers /oining nstructions issued to oining students) in which the students) including theappellants) were informed that the $niersity programmes might run for seen days a wee

They were also informed that since the $niersity had students and members of staff from

arious religious bac&grounds) the $niersity might not meet the interests of a particular group)

especially in the crucial areas of attendance of lectures and e"aminations# The students wereurged to respond to their academic wor& in the academic unit een if it too& place in their

respectie 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 thecompletion of their courses and een 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 thanthe Sabbath day or in the alternatie) 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"aminationslater between 6#0 and ,#0 p#m#

The respondent was unable to accept this request due to the fact that it was a secular $niersitywhich could not cater for particular religious groups) gien its limited physical facilities and

huge financial costs inoled# 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 theresponse of the respondent# They brought a petition in the Constitutional Court under Article 1-

of the Constitution) see&ing mainly a declaration that the $niersity's policies and regulations of

scheduling lectures) mandatory tests and e"aminations on the Sabbath !ay are inconsistent andare in contraention of Articles 20) 2, *1+ *c+) 0 and - of the Constitution) in respect of the

appellants who profess the Seenth !ay Adentist .aith#

n the petition) the appellants alleged that the (a&erere $niersity policies and regulations made

under the authority of the $niersity and 3ther Tertiary nstitutions 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


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who beliee in the Seenth !ay Adentist Christian .aith+) irrespectie of the students' religious

affiliations are inconsistent with and in contraention of Articles 20) 2,*1+ *c+) 0 and - of the

Constitution of $ganda#

They alleged further that (a&erere $niersity scheduled the ta&ing of mandatory e"aminations

for the subect of 'ntroducing 4aw' *for the 1st and 2nd appellants+ and '4egal Aspects of5lanning' *for the rd appellant+ on Saturday) 2th /anuary 200) which was their Sabbath !ay

and on which day they could not by reason of their faith and beliefs under the Seenth !ay

Adentist Christian .aith) ta&e e"aminations# .or the same reason) the rd appellant was forcedto miss a scheduled e"amination in the course of 'Ciil 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 inustice and were entitled

to legal redress#

The appellants contended that (a&erere $niersity 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 ande"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 Seenth !ay Adentist Christian .aith) as guaranteed under Article 2,*1+ *c+ of theConstitution#

The appellants further contended that the effect of the policies of (a&erere $niersity of

scheduling mandatory classes) tests and e"aminations on the Sabbath !ay) imposed anunconstitutional burden on them) by irtue of their faith and undermined their constitutionally

guaranteed right to education under Article 0 of the Constitution#

.urthermore) it was their contention that the $niersity 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 theirreligion in community with others) under Article - 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 seere hardship) loss and detriment to them for which harm theyare entitled to declarations) legal redress and appropriate compensation in damages#

The appellants prayed for the following declarations

*1+ The (a&erere $niersity policies and regulations of scheduling lectures) mandatory tests and

e"aminations on the Sabbath !ay) are inconsistent with and in contraention of Articles 20)2,*1+*c+) 0 and - of the Constitution in the case of your 5etitioners who practise the Seenth

!ay Adentist Christian .aith#


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*2+ (a&erere $niersity iolated the petitioners' constitutionally guaranteed rights under Articles

20) 2,*1+*c+) 0 and - of 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 affidaits of the

three appellants and three other members of the Seenth !ay Adentist .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 wasinconsistent with Articles 20) 2,*1+ *c+ 0) and - 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 wereadmitted subect to the /oining nstructions that the $niersity programmes might run seen days

a wee&) and since the $niersity had students and staff from arious bac&grounds) the $niersity

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 seeral affidaitsincluding) one by the 7ice Chancellor of the $niersity) 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 contraention of Articles 20)

2,*1+ *c+) 0 and - of the Constitution of $ganda in the case of the 5etitioners#

2# 8hether the respondent is entitled to claim a lawful derogation under Article 9 of theConstitution of $ganda#

The Constitutional Court answered both issues in the negatie) 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 0 of the Constitution and that the ;espondent was ustified in requiring theappellants 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 themseles 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 ofthe 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+) 0 and - of the

Constitution#


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# That the learned /ustices of the Constitutional Court erred in law when they held that the

.reshers /oining nstructions of the ;espondents notifying the Appellants on oining the

;espondent $niersity that programmes would run seen days a wee& and that the ;espondentwould not be obliged to respect any day of worship was sufficient notice that absoled 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 theAppellants should hae turned down the offer to oin the ;espondent at the beginning#

9# That the learned /ustices of the Constitutional Court erred in law and in fact when they heldthat the policy of the ;espondent requiring students to sit e"ams on the Sabbath irrespectie of

their religion) did not gie rise to an unconstitutional burden on the Appellants that iolated their

freedom of religion by irtue of a fundamental tenet of the Adentist Christian .aith#

# The Appellants shall demonstrate that the learned /ustices of the Constitutional Court

seerally misdirected themseles 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,) 0 and

- of the Constitution) there being no iolation of any rights therein and the ;espondenttherefore did not hae the onus of proing ustifiable derogation from any rights of the

Appellants#

6# The learned


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? Another 7 Attorney @eneral) Const# App =o 2 of 2002 SC#

(r# 8amala) for the respondent) submitted that Article 9 proides a limitation on rights andfreedoms based on public interest#


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eening would impose an unbearable burden on the respondent#

n reply) (r# 8amala for the respondent submitted that the si" grounds of appeal could besummaried under the two issues hae already stated aboe# 4earned counsel pointed out that

the appellants had narrowed down their complaint in the grounds of appeal to attending

e"aminations) and hae left out attendance of wee&ly tests which had been included in thepetition#

(r# 8amala's first submission was that not eery infringement of a human right constitutes aiolation of the Constitution# t was his contention that the test is whether there is substantial

iolation of the petitioners' right# 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' nstructions) the appellants waied

their Constitutional rights and cannot be seen to complain now#


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;eleant Constitutional 5roisions

.reedom of religion is guaranteed by Article 2,*1+ *c+ of the Constitution which proides)

'*1+ ery person shall hae the right to

# 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 organiation in a mannerconsistent with this Constitution#'

This right is reinforced by Article - which proides)

'ery person has a right as applicable to belong to) enoy) 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 proided for under Article 0) which states that) 'All persons hae a

right to education#'

The Constitution proides 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 indiidual are inherent and not granted by the State#

*2+ The rights and freedoms of the indiidual and groups enshrines in this Constitution shall be

respected) upheld and promoted by all organs and agencies of the @oernment) and by all

personsD

The Constitution proides for a general limitation on fundamental rights and freedoms under

Article 9 in these terms

D*1+ n the enoyment of the rights and freedoms prescribed in this chapter) no person shall

preudice the fundamental or other human rights and freedoms of others or the public interest#

2+ 5ublic interest under this article shall not permit

1# political persecutionE

2# detention without trialE


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# any limitation of the enoyment of the rights and freedom prescribed by this chapter beyond

what is acceptable in a free and democratic society) or what is proided 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 proisions) the Constitution shall preail and that other law orcustom shall) to the e"tent of the inconsistency) be oid#'

$nder Article 0 of the Constitution any person who claims that a fundamental right or freedomguaranteed 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 1-*+ which proides)

D*+ 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 contraention of a proision of this Constitution may petition the

Constitutional Court for a declaration to that effect) and for redress where appropriate#D

t is a wellFestablished principle of constitutional interpretation that a broad and liberal spirit is

required for its interpretation# t is essential that a constitution is not interpreted in a narrow and

legalistic way but generously) and purposiely) so as to gie effect to its spirit) and this isparticularly true of those proisions which are concerned with the protection of constitutional

rights# See ; # %ig (# !rug (art 4td# *1,>+1> !4; 21#

There are also ample authorities for the proposition that a constitution should be interpreted as an

integrated whole so that no single proision of the Constitution is segregated from others and

considered alone) but that all proisions bearing upon a particular subect are brought into iew

and to be interpreted so as to achiee the greater purpose of the constitution# See South !o&ata7# =orth Caroline 1,2 $S 26>) 1,90 99> at 96#

mportance of Sabbath to the Seenth !ay Adentist .aith

According to the faith of the Seenth !ay Adentist Christians) the obserance of the Sabbath is

one of the Ten Commandments# This is spelt out in the


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you) nor your son or daughter nor your manFserant nor your mainFserant nor your animals nor

the alien within your gates# .or in si" days the 4ord made the heaens and the earth) the sea) and

all that is in them) but he rested on the seenth day# Therefore the 4ord blessed the Sabbath !ayand made it holy#D

According to the affidait sworn by !r# /ohn %# Ga&embo) the "ecutie Secretary to theSeenth !ay Adentist Church) $ganda $nion) the Sabbath obserance is one of fundamental

beliefs of the Seenth !ay Adentist Church# n a te"t boo& entitled) 8hat the Seenth !ay

Adentist %eliee where the teaching of the Sabbath is contained in Chapter 1, at pages 29F266) it is stated that the Sabbath is central to their worship# t is a memorial of creation because

@od rested and was refreshed on the Seenth !ay *"odus 11-+ @od also blessed the Sabbath

and sanctified it#

8ith regard to obserance of the Sabbath) the boo& states at page 26)

'To remember the Sabbath !ay) to &eep it holy *"#20>+# 8e must thin& of the Sabbath

throughout the wee& and ma&e the preparations necessary to obsere 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 +#

Twinomuuni /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& 2where he said that the Sabbath was made for man and not man for Sabbath) and (athew 121F

where /esus said) 't is lawful to do good on the Sabbath#'


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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 ofoffice as a preliminary to registration as a legal practitioner on the ground of his appearance had

placed the applicant in a dilemma#


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and:or e"aminations# Iou are therefore urged to respondent to the academic wor& in your

Academic $nit een if it ta&es place on the respectie 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 "ecutie Secretary of the Seenth !ay

Adentist Church) $ganda $nion) by 5rof# /ohn Ssebuwufu) the then 7ice Chancellor of therespondent $niersity# The body of the letter reads

; S7=T< !AI A!7=TST ST$!=TS A=! ACA!(C ACT7TS 3=SAT$;!AIS

Than& you ery much for your dated /une 1>) 2002 regarding scheduling of e"aminations on

Saturday#

5rior to 1,,-) the $niersity 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# en then)

in a few academic units) for e"ample) in the faculty of (edicine) tests and some clinicals had tobe conducted on Saturdays and Sundays purely because of the nature of such academic

programmes#

The $niersity has since 1,,- witnessed many positie deelopments including a big increase in

the number of students admitted and the introduction on a wide ariety of courses andprogrammes of study# The $niersity now runs not only day classes but also afternoon) e"ternal

and eening classes#

8ith such a comple" system) many practice) norms and patterns of the $niersity life hae hadto change to suit the new circumstances and realities in which the $niersity has to operate# The

$niersity Senate and (anagement hae) therefore) agreed that whilst indiidual religious

beliefs hae to be respected) academic actiities can be scheduled on any or all the seen days ofthe wee The $niersity Senate and (anagement hae also agreed that academic actiities can

be schedule from -#00 a#m# to 10#00 p#m# on any day#

f 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 $niersity or to reta&e a particular course when such a

course would be offered again# $nder the Semester which the $niersity now operates) special

or supplementary e"aminations are not administered# n the circumstances) any Seenth !ayAdentist Student who may not hae sat for a particular e"amination) may apply to the

respectie !ean:!irector to reta&e the course for such e"amination when it will be ne"t offered

again#

3n its part) the $niersity (anagement will continue to respect indiidual religious beliefs and

the freedom of worship but where there are constraints) it is hoped that students and the generalpublic will understand and support the $niersity so that in the end D 8e %uild for the .uture#D

n his affidait in support of the answer to the petition) 5rof# Ssebuwufu e"plained the obecties

of the policy and regulations) their effect) the efforts to accommodate the demands of the


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appellants) and the reasons why the appellants could not be e"empted from the academic

programmes conducted on the Sabbath#


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J $niersity would be compelled to reschedule lectures) tests and e"aminations in respect of

arious religious groups li&e Catholics) Anglicans) %ahais)


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;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 een gae them alternaties of ta&ing the educational programmes when fi"ed

on other days than Sabbath# They had that option but not to gie up their religious beliefs# They

had so many choices including transferring to other $niersities or nstitutions# =o eidence ofreprisal is adduced to proe 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 coniction# f

anything other students or groups may be e"ercising similar problems# The respondent hasstudents 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 $niersity and other Tertiary nstitutions Act) =o - of 2001)

under which the policy and regulations were made and said)

't is material to note that the respondent's policies and regulations are made under the $niersityand other Tertiary nstitutions Act =o - of 2001 with a purpose to proide for the establishment

of the =ational Council for


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After quoting Article 9 of the Constitution) Twinomuuni /A obsered that the appellants had to

respect the rights of others in the enoyment of their rights

D8hile the petitioners are free to enoy their rights and freedoms they must respect the rights and

freedoms of others who do not practice the same religion or those of the $niersity# The

regulations in issue are nonFdiscriminatory# They equally apply to all the people and necessary inorder to run an institution as (a&erere $niersity# They do not howeer) affect anyone who does

not oluntarily choose to oin the $niersity# f admit you to lie in my house under specified

conditions and you accept to do so) you will be held to be out of order if you subsequentlyattempt to replace the conditions with those which suit your own peculiarities# .or these reasons

would hold that (a&erere $niersity regulations do not in any way iolate or contraene the

petitioners' constitutional rights of religion and education#D

3n her part Gitumba /A) underscored the fact that the appellants had a choice to oin or not oin

the respondent and that the respondent's policy was intended and did secure accessible and high

quality higher education# She obsered

D would li&e to obsere that the ;espondent $niersity is not the only $niersity in the country#

The petitioners freely choose to go to (a&erere $niersity and hae therefore to abide by theconditions# The right to education proided by Article 0 of the Constitution does not in any way

mean the right to attend the ;espondent $niersity at the students' own terms#

She held that the respondent's regulations did not contraene Article 20 of the Constitution

because the obects of the Act as set out in Section are stated as follows

DThe obect of this Act are to establish and deelop a system goerning institutions of highereducation 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 tostudents wishing to pursue higher education courses# *mphasis hers+#

The learned /ustice of the Constitutional Court then concluded that the respondent's policy wasconsistent with the Constitution# She stated)

Dn my iew the eidence adduced especially in the affidait of 5rofessor /ohn Ssebuwufu shows

that the respondent's policy is in strict compliance with the Constitution# n his affidait dated-th (ay 200) he aers) 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 adantages

1# $niersity education has been made accessible to large number of students including eening

studentsE

2# there has been an increase of the inta&e of priately sponsored studentsE

# the ariety of courses offered has increasedE


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9# the $niersity has generated more reenueE and

# the cost of $niersity education for students has become cheaper#D

hae quoted e"tensiely from the udgments of the /ustices of the Constitutional Court to

demonstrate how each of them resoled the issue whether the respondent's policies andregulations) infringed the appellant's rights to education and freedom of religion# They all arried

at a common finding that the respondent's policies and regulations were neither inconsistent with

the Constitution nor infringed the appellant's rights# am in general agreement with theirreasoning and conclusion#

.rom the eidence of 5rofessor /ohn Ssebuwufu contained in his arious affidaits) it is clear to

me that the respondent was alie to its duty under Article 20 of the Constitution to respect therights and freedoms of all its students) including those of the appellants# ts policies in e"panding

and academic programmes) and increasing students' inta&e were aimed at increasing access to

$niersity education in accordance with Article 0 of the Constitution## The appellants were not

deliberately or discriminatorily denied the right to education or their freedom to religion# ndeed)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 aderse 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 9 ofthe Constitution#

t was submitted for the respondent that the interference with the appellants' rights was not

substantial and therefore could not be said to hae infringed their rights# Counsel relied on thecase Syndicat =orthcrest s# Amstem *2009+ 2 SC; 1 where it was stated at page 9)

D.reedom of religion is triggered when a claimant demonstrates that he or she sincerely belieesin 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 *orthe Canadian+ Charter#


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4uty to 2ccommodate:

t was submitted by counsel for the appellants in respect of ground 6 that the /ustices of theConstitutional Court failed to ealuate the eidence correctly leading them to conclude that

giing appellants more accommodation would impose unbearable burden on the respondent#

Counsel argued that there was no eidence 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 nseignement de Champlain s# CS; !echambly C%ergein *1,,9+ ;CS 2) and Central Alberta !airy 5ool s# Alberta *,#

n Syndicat de nseignement de Champlain case *Supra+ the Supreme Court of Canada wasdealing with a case of religious discrimination of employees# The court obsered that reasonable

accommodation was an integral part of equality# The court said further that historically the duty

to accommodate deeloped as a means of limiting the liability of an employer who was found to

hae discriminated by the bona fide adoption of a wor& rule without any intention todiscriminate# %y proiding reasonable accommodation to the affected wor&ers) the employer

could ustify the aderse effect discrimination and thereby aoid liability for the unintendedconsequence of the rules of employment#

+he e#tent of the duty to accommodate in cases of adverse effect discrimination as stated

in the "yndicat Case as follos:

DThe duty in a case of aderse discrimination on the basis of religion or creed is to ta&e

reasonable steps to accommodate the complainant short of undue hardshipE in other words) tota&e such steps as may be reasonable without undue interference in the operation of the

employers business and without undue 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 20F21# 8here it was said)

D do not find it necessary to proide a comprehensie definition of what constitutes undue

hardship but beliee it may be helpful to list some of the factors that may be releant to such

appraisal# begin by adopting those identified by the %oard of nquiry# n the case at bar F

financial cost) disruption of a collectie agreement) problems of morale of other employees)interchangeability of wor& force and facilities# The sie of the employers operation may

influence the assessment of whether a gien 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 themagnitude of the ris& and the identity of those who bear it are releant considerations# This list is

not intended to be e"haustie 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 caseto case#D

The Court went on to obsere 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#


19/39

These factors are not engraed in stone# They should be applied with common sense and

fle"ibility in the conte"t of the factual situations presented in each case# t should be remembered

that the duty to accommodate is limited by the words DreasonableD and Dshort of unduehardshipD# 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 am satisfied that the principles

hae elucidated aboe apply with equal force to the present appeal# find that the /ustices of the

Constitutional Court correctly ealuated the eidence relating to the issue of accommodation andcame to the right conclusion that giing the appellants more accommodation would impose

unbearable burden and hardship on the respondent# 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 aswell as seriously affect the ability of the respondent to proide accessible) affordable ) quality

higher education to a dierse and multiFreligious community# therefore find no merit in ground

6) which should fail#

Waiver of Ri=hts or -stoppel:

t was argued by counsel for the appellants that the appellants did not waie 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+ 1) where the Supreme Court ofndia held that there is no estoppel against the Constitution# The Court obsered that in petitions

which were clearly maintainable under Article 2 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 onlyprotected indiiduals) but also sered the public interest# =o indiidual 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 hae not inured anyfundamental right+ could not create an estoppel in those or any subsequent proceedings) nor

could fundamental rights conferred by the Constitution be waied#

The Supreme Court further held that notwithstanding the fact that the petitioners conceded in the

%ombay 1) they were entitled to assert

that any such action on the part of the public authorities will be in iolation of their fundamentalright#


20/39

n the present case) it is not disputed that the appellants were made aware of the respondents'

policy and regulations# en though) the appellants oluntarily accepted the terms containing in

the /oining nstructions) they cannot be said to hae waied their rights to education or freedomof religion# =eertheless their rights were not infringed in contraention of the proisions of the

Constitution# @round should therefore fail#

-sta$lishin= %ustifia$le 4ero=ation>.imitation:

@round is ague) argumentatie and repetitie of foregoing grounds of appeal and generallyoffends the rules for drawing up grounds of appeal# t 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 9#

n my iew) learned counsel for the appellants' should hae argued ground fie 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

contraention of Articles 20) 2,) 2,*1+ *c+ 0 and - of the Constitution in the case of thepetitioners#

n 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# f the action or law is found not to infringe upon that right or freedom) then thataction or law is consistent with and does not contraene the proisions of the Constitution

guaranteeing that right or freedom#


21/39

n ;#7# /a&es *1,>6+ 26 !4; *9th dn+ 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 follos:

D.irst) the obectie which the measures responsible for a limit on a charter right or freedom aredesigned to sere) must be 'of sufficient importance to warrant oerriding a constitutionally

protected right or freedom' #7# %ig ( !rug (art 4td# *1,>+ 1> !4; *9th d+ 21# The standard

must be high in order to ensure that obecties which are triial or discordant with the principlesintegral to a free and democratic society do not gain protection# t is necessary at a minimum that

an obectie 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 obectie is recognised) then the party ino&ing Section 1 *the limitation clause+ mustshow that the means chosen are reasonable and demonstrably ustifiedE This inoles 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 indiiduals 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 achiee the obecties in question# They must not bearbitrary) unfair) or based on irrational considerations# n short they must be rationally connected

to the obectie# Secondly) the means een if rationally connected to the obectie 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 whichare responsible for limiting the charter) right or freedom and the obectie which has been

identified as of sufficient importance#D

Those authorities establish that it is always necessary to determine whether the legislatie

obectie is sufficiently important to ustify hunting a fundamental right# t must be established

that the impugned action has an obectie of e"pressing a substantial concern of society in a freeand democratic society# The courts hae 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#

n determining what is acceptable and reasonably ustifiable 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# n the balancing process) the releantconsideration 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


22/39

# the e"tent of the limitationE

9# the efficacy and particularly where the limitation has to be necessaryE and

# 8hether the desired ends could reasonably be achieed 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 enoyment of their rights) the appellants mustnot preudice the fundamental rights and freedoms of others or the public interestE as proided

for under Article 9 of the Constitution#

t is my iew that had learned /ustices ta&en into account all the aboe principles) they wouldhae come to the same conclusion that the limitations imposed upon the right to education and

freedom of religion were ustifiable in a free and democratic society#

The oerriding obect or purpose of the respondent's policies and regulation was an importantand pressing social or community interest) namely to improe access to quality $niersity

education at reasonable costs for all $gandans# The policy was not discriminatory but wasapplicable to all students from arious religious beliefs# The e"tent and effect of the interference

in the enoyment of the appellants' rights and freedoms was minimied by the reasonable

accommodation e"tended to the appellants by the respondent# To e"empt the appellants from thepolicy 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 obectie to be achieed# n my iew) the respondent adduced sufficient

eidence) and discharged the burden which lay on it) to establish that any infringement on theappellants' right to education and freedom of religion was reasonably ustifiable in a free and

democratic society in accordance with Article 9 of the Constitution# Accordingly) ground

should also fail#

!isposition

would) therefore) uphold the decision of the Constitutional Court that the respondent's policiesand regulations are not inconsistent with and in contraention of Articles 20) 2,*1+ *c+) 0 and -

of the Constitution of $ganda in respect of the appellants# would also uphold the Court's

decision that the respondent did not hae to claim a lawful derogation in accordance with Article9 of the Constitution# 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#

n the result) would dismiss this appeal# would ma&e no order as to costs#


23/39

As the other members of the Court agree with this udgment and the order hae proposed) this

appeal is dismissed with no order as to costs#

%U415-3+ 0F +"-60060' %"C

hae had the benefit of reading in adance the draft udgments prepared by their 4ordships thelearned Chief /ustice and Gatureebe) /SC# %oth hae gien the bac&ground to this appeal) set out

the contentious matters and the grounds of appeal#

entirely agree that there is no merit in this appeal# (a&erere $niersity) the present respondent)

clearly warned all new students in adance about the fact of conducting lectures and

e"aminations on all the days of the wee ach student as a fresher was made aware of these

facts through the .reshers /oining nstructions at the commencement of the first year ofadmission to (a&erere $niersity# The appellants were aware of this from day one# The .reshers

/oining nstructions were in conflict with their religious beliefs# nstead of opting not to oin

(a&erere $niersity) the appellant consciously chose to oin and embar&ed on study &nowing

that by ta&ing these steps) they thereby bound themseles to abide by the rules and regulations of(a&erere $niersity# 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$niersity programmes# The respondent's eidence especially the additional affidait of 5rof# 5#

/# (# Ssebuwufu) demonstrate how far the respondent went to accommodate the needs of the

appellants#

find no merit in any of the grounds of the appeal# would dismiss the appeal# would ma&e no

order as to costs#

%U415-3+ 0F 62R060R2' %"C

hae had the adantage of reading in draft the udgments prepared by my 4ords the learnedChief /ustice and my learned brother) Gatureebe) /SC and entirely agree that the appeal has no

merit#

only wish to add that the appellants were warned of the respondent's policy entitled DMakerere

.ni/ersity Academic 0egistrar1s Department 2reshers Joining 3nstructions +4445$''' Academic

6ears)D before oining the $niersity# 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 oflectures 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 oining the $niersity as follows


24/39

'=3T 54AS !3 ;A! T


25/39

The policy and the regulation neither preent students from practicing their religionsE nor deprie

or deny any student the right to education# The appellants) who profess the religious faith of

Seenth !ay Adentists) oined the $niersity with full &nowledge that under the said regulationthey would be required to attend lectures and ta&e mandatory tests and e"aminations on any day)

including the Sabbath day# n my iew) the admission of the appellants into the $niersity did

not create or impose on the respondent any constitutional obligation to adust its programs toconform 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 practicetheir faith as they prefer# The appellants had the choice to oin the $niersity and adust their

religious practices to abide by its regulationE or to pursue their education where they could

adhere to their strict obserance of the Sabbath#

%U415-3+ 0F 6237-/,25B2' %"C

hae had the benefit of reading in draft the udgment of 3do&i) the learned Chief /ustice and of

my learned brother) Gatureebe) /SC) and agree with them that this appeal ought to be dismissedfor the reasons they hae gien#

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 Seenth !ay Adentists Students at (a&erere $niersity) 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 Seenth !ay Adentist .aith)

which) it is stated) beliees in the sanctity of the Sabbath# To these belieers) no wor& is to bedone 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 byas&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


26/39

showing an attempt to resole the matter amicably#

The ;espondent contends that it is a secular public uniersity which does not faour anyparticular religion# t says that in order to carry out its legal mandate of e"panding uniersity

education and ma&ing it aailable to as many people as possible at the lowest cost possible) the

uniersity formulated the policy that the core actiities of the $niersity) li&e teaching ande"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 aailable

to all persons intending to oin the uniersity through the /oining nstructions and letters ofadmission 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# t would alsolead 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 requiringthe 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 0 of the Constitution#The Constitutional Court heard the petition and considered affidait eidence filed by both

parties and dismissed the petition by unanimous decision#


27/39

respondent at the beginning#

9# That the learned /ustices of the Constitutional Court erred in law and in fact when they heldthat the policy of the ;espondent requiring students to sit e"ams on the Sabbath irrespectie of

their religion) did not gie rise to an unconstitutional burden on the appellants that iolated their

freedom of religion by irtue of a fundamental tenet of the Adentist Christian .aith#

# The appellants shall demonstrate that the learned /ustices of the Constitutional Court seerally

misdirected themseles on matters of law) procedure and fact when they substantially found thatthere was no inconsistency in the appellants petition:case with article 20) 2,) 0 and - of the

Constitution) there being no iolation of any rights therein and the respondent therefore did not

hae the onus of proing ustifiable derogation from any rights of the Appellants#

6# The learned


28/39

n arguing ground ) Counsel submitted that the /ustices were wrong in law to hold that the

appellants had waied their rights by oining the respondent $niersity &nowing as they did that

lectures and e"aminations were offered seen days a wee&) and that the appellants were thereforeestopped from claiming iolation of their rights# Counsel cited the ndian Case of Tellis And

3thers F7s %ombay (unicipal Corporation And 3thers K1,>-L 4;C 1E and also the Case of

Syndicate =orthcrest F7sF Amselem K2009L 2 SC; 0 as authority for the proposition thatconstitutional rights could not be waied#

n respect of grounds 2 and 9 counsel submitted that the /ustices were wrong to find that thepolicy and regulations of the ;espondent were not inconsistent with Articles 20) 2,*1+ *c+) 0

and - 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#


29/39

constitutional rights and cannot claim iolations of these rights by the ;espondent# and ,,#

n summarising his submission on the first part of the question he had posed) counsel submitted

that the regulations were not unconstitutional# of the

=ational 3becties and !irectie 5rinciples of State 5olicy of the Constitution and section ofthe $niersities and Tertiary nstitutions Act in support of his argument#

3n the second part of the question) i#e# whether there was a ustifiable derogation under Article

9) Counsel submitted that based on the affidaits of the 7ice Chancellor and the @uild5resident) there was eidence that the interest of the public would be adersely affected#


30/39

grounds of appeal filed by the appellant actually reole around that question# ndeed at the

hearing of the 5etition in the Constitutional Court) the aboe 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 to the effect that the /ustices of the

Constitutional Court had misdirected themseles in law and fact in holding that the respondentdid not hae the burden to proe that it was entitled to derogation under Article 9#


31/39

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 proing ustification for a derogation under

Article 9# %ut she later found that there was Dno inconsistency between the respondent's policyand the impugned articles) the respondent does not hae to see& to be coered under a lawful

derogation under article 9#D

Again 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 ino&eArticle 9#

n his /udgment) Twinomuuni) /A) at page 1 also cites Article 9 and also finds thatF

D(a&erere $niersity regulations do not in any way iolate or contraene the 5etitioners

Constitutional rights of religion and educationD


32/39

now turn to ground 1 which in my iew presented a more substantie 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 respondentwere not inconsistent with or in contraention of Article 20 *2+# t 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 indiidual and groups enshrined in this chapter shall berespected) upheld and promoted by all organs and agencies of @oernment 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) appreciate the submissions of Counsel on the effect of the

5etitioners' rights# t is true the respondent has a duty to accommodate the Seenth !ay

Adentists students minority but on condition that the policy on the 5etitioners' rights underArticle 20 of the Constitution is not preudicial to other people's rights in the $niersity# Article

20 *2+ imposes an affirmatie constitutional duty on the respondent to respect) uphold andpromote the religious beliefs of the 5etitioners and other members of their faith# do not agree

that on the eidence on record the respondent forced the 5etitioners to participate in the

respondent's educational programmes on Sabbath day#D

n my opinion) Article 20 *2+ cannot and should not be loo&ed at in isolation of the rest of the

Constitution# agree with Gitumba) /A) in her udgment where) while citing the Tinyefuna F7sF

Attorney @eneral case) she states that the arious proisions of the Constitution must be readtogether for purposes of harmony) completeness and e"haustieness 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 proe that the respondent had refused or failed to respect)

uphold and promote the right to religion of the appellants# According to eidence on record therespondent is a secular public institution# t had certain duties pursuant to its Charter and the

$niersities and 3ther Tertiary nstitutions Act# The policy of the respondent to utilie all the

seen days of the wee& for teaching and e"aminations was meant to improe the quality of

education and to e"pand the inta&e into the $niersity so as to gie as many people as possible achance to access uniersity 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 emphasie

that anyone oining the $niersity) would be e"pected to attend lectures or sit e"aminations onany of the days of the wee The appellants oined the $niersity well &nowing this position#

This was attested by affidaits of the appellants themseles and of the 7ice Chancellor of the

$niersity) 5rof# Ssebuwufu# n his affidait dated -th (ay 200) the 7ice Chancellor alsooutlined the alternatie possible measures that could be put in place to accommodate the

appellants and others who may hae difficulties in attending lectures or sitting e"aminations on

Saturdays#


33/39

DThe $niersity has made alternatie proisions to such as of its students who may not be able to

attend lectures and or e"aminations on a gien day or time of the wee& in the following waysF

*a+ Students are offered an opportunity at the time of admission) to change course and or subects

in light of the proided timetables# The new students *freshers+ are granted an option) wherepossible) to offer courses with the most conenient 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 respectie 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 eidence clearly shows that the respondent did not fail or refuse to respect) uphold or

promote the rights of the appellants# t is clear that the respondent was alie to the concerns ofthe appellants# @enuine attempts were made to accommodate them# therefore cannot agree with

(r# (adrama's submission that the respondent failed to obsere 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# 6+ 4;C 2 where the applicable test was laid downE

%oth purpose and effect are releant in determining constitutionality either an unconstitutional

purpose or an unconstitutional effect inalidate legislation# All legislation is animated by anobect the legislature intends to achiee# This obect is realised through the impact produced by

the operation and application of the legislation# 5urpose and effect respectiely in the sense of

the legislation's obect and its ultimate impact are clearly lin&ed) if not indiisible# ntended and

actual effect hae often to be loo&ed to for guidance in assuming the legislation's obect and thus


34/39

its alidity#D


35/39

right to freedom of religion#


36/39

n my iew) the learned !#C# /ustice properly addressed herself to the law and the facts of the

case and see no misdirection on her part# Articles 20) 2, and 0 of the Constitution must be

read together with article 9# t is pertinent to set out the proision of Article 9*1+#

Dn the enoyment of the rights and freedoms prescribed in this chapter) no person shall preudice

the fundamental or other human rights and freedoms of others or the 5ublic interestD *emphasismine+#

3bectie N7 of the =ational 3becties and !irectie 5rinciples of State 5olicy) which aresupposed to help us interpret the Constitution states) inter alia) as follows

i# DThe State shall ta&e appropriate measures to afford eery citien equal opportunity to attain

the highest educational standard possibleD#

ii# ndiiduals) religious bodies and other nonFgoernmental 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 0 must be loo&ed at in the conte"t of theaboe principle# The $niersities and 3ther Tertiary nstitutions Act) under which the

respondent's policy and regulations are based) must also be loo&ed at in that conte"t# The

affidait eidence of 5rof# Ssebuwufu clearly brought out how the policy has positiely affectedthe obectie of giing greater access to uniersity education to more citiens 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 9*1+# Although Dpublic interestD is not defined in the

Constitution) one may find an instructie definition in %lac&'s 4aw !ictionary 6th dition

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 nterest shared by citiens generallyin affairs of local) state or national goernment#D

n my iew) the policy of the respondent was meant to sere an important public interestpursuant to the requirements of the Constitution and the law# The appellants seem to imply that

their own rights must be enoyed irrespectie of the negatie effects that may hae on the public

interest) i#e# irrespectie of the implications for the integrity of the e"aminations) the costs to the

respondent or the oerall costs to the other students# They do not accept the accommodationoffered to them by the respondent# n my iew article 9*1+ was alie to this type of situation so

that the appellants ought to hae &nown that their enoyment of their right to religion or to

education was not absolute# t had to ta&e into account the rights of others as well as the publicinterest#

t is in that conte"t that the learned /ustices of the Constitutional Court suggested that theappellants had a choice to go to other institutions where their interests could be better

accommodatedE do not agree with Counsel for the appellants that this amounted to as&ing the

appellants to waie their right to freedom of religion or religious practice# All the releant

proisions of the Constitution had to be loo&ed at as a whole) which the learned /ustices of


37/39

Appeal did# n my iew) the Syndicate case is distinguishable from the present case# The

appellants were not required at any time to waie their right to freedom of religion# They could

hae chosen another institution or accepted the accommodation offered by the respondent# 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 theright to manifest that religion through practice# The sincerity with which a person held his beliefs

was not to be questioned# Counsel criticised the udgment of Twinomuuni) /A#


38/39

condemned to hell# ndeed) to me) it is indicatie 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# n my iew no Court or anyone else should question this) nor did anyone question it# Theproblem seems to hae come from !r# Ga&embo who testified as an e"pert on the beliefs of the

appellants# n his affidait) !r# Ga&embo attached certain literature including the


39/39

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 hadoffered accommodation to the appellants which they refused# find no alid reasons for this

court to interfere with the findings of the Constitutional Court# @round 6 should also fail#

n the result) would dismiss this appeal#

Freedom of Worship and Belief

Documents