Page | 199 Constructing the Amicus Curiae procedure in human rights litigation: What can Uganda learn from South Africa? JOHN C MUBANGIZI Professor of Law, Deputy Vice-Chancellor and Head of the College of Law and Management Studies, University of KwaZulu-Natal CHRISTOPHER MBAZIRA Associate Professor of Law, School of Law, Makerere University, Deputy Dean (Postgraduate) & Coordinator, Public Interest Law Clinic 1 INTRODUCTION The participation of amicus curiae in litigation is a practice which is increasingly being entrenched not only across common law and civil law jurisdictions but also in domestic and international legal tribunals. Due to the manner in which the practice has evolved in different legal systems, it has become “versatile, and the amicus [now] fulfils a wide range of diverse and important functions.” 1 In many 1 See Murray C “Litigating in the Public Interest: Intervention and the Amicus Curiae” (1994) South African Journal on Human Rights, 240 at 242. LAW DEMOCRACY & DEVELOPMENT VOLUME 16 (2012) DOI: http://dx.doi.org/10.4314/ldd.v16i1.11 ISSN: 2077-4907
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Page | 199
Constructing the
Amicus Curiae
procedure in human
rights litigation:
What can Uganda
learn from South
Africa?
JOHN C MUBANGIZI
Professor of Law, Deputy Vice-Chancellor
and Head of the College of Law and
Management Studies, University of
KwaZulu-Natal
CHRISTOPHER MBAZIRA
Associate Professor of Law, School of
Law, Makerere University, Deputy Dean
(Postgraduate) & Coordinator, Public
Interest Law Clinic
1 INTRODUCTION
The participation of amicus curiae in litigation is a practice which is increasingly being entrenched not only across common law and civil law jurisdictions but also in domestic and international legal tribunals. Due to the manner in which the practice has evolved in different legal systems, it has become “versatile, and the amicus [now] fulfils a wide range of diverse and important functions.”1 In many
1 See Murray C “Litigating in the Public Interest:
Intervention and the Amicus Curiae” (1994) South African Journal on Human Rights, 240 at 242.
The Judge adds that “[t]hese amicus briefs invaluably aid our decision-making process
and often influence either the result or the reasoning of our opinions”.13
It must be emphasised however, that human rights issues were raised in only
about half of the US briefs. In several other countries, particularly Canada, Australia and
the United Kingdom, the trend has only picked up in the last few decades with the
increase in litigation involving human rights and constitutional interpretation.14
In so far as the role of amicus curiae in international human rights litigation is
concerned, the approaches of the continental/regional courts are of particular interest.
According to one commentator:
“Individuals and human rights NGOs in Europe and the Americas have exploited the concept of
the amicus curiae as a mechanism for participating in, and shaping the course of, human rights
adjudication before the European Court of Human Rights and the Inter-American Court of Human
Rights.”15
The commentator went on to suggest that with the benefit of history the African Court
of Human and Peoples’ Rights should emulate its European and American counterparts
in the flexibility of allowing amicus curiae participation in resolving human rights
disputes.16 It has further been argued that although the Protocol Establishing the
African Court on Human and Peoples’ Rights is silent on amicus curiae, the Court can
admit amicus participation through its procedural rules and purposeful interpretation
of the Protocol.17
The amicus curiae procedure has become so important that it is gradually
making its way into international arbitral procedures including in the area of
international investment law.18 Although the procedure is yet to take root, it is
increasingly featuring in the proceedings of such international arbitration procedures
as those of the World Trade Organisation (WTO), North American Free Trade
Agreements (NAFTA), and the International Centre for the Settlement of Investment
Disputes (ICSID). It has on the basis of this been predicted that the filing of amicus
curiae briefs is going to become a universal practice in the future.19
13 Honorable Justice Sandra Day O’Connor in his speech while accepting Henry Clay Medallion from the
Henry Clay Memorial Foundation on 4 October 1996, available at <http://www.henryclay.org/henry-clay/attorney/> (accessed on 20 July 2012).
14 See Mohan (note 5 above) 372.
15 See Mohamed A “Individual and NGO Participation in Human Rights Litigation before the African Court of Human and Peoples’ Rights: Lessons from the European and Inter-American Courts of Human Rights” (1999) 43 Journal of African Law 205.
16 Ibid. 213.
17 See Juma D “Lost (or Found) in Transition? The Anatomy of the New African Court of Justice and Human Rights” at http://www.mpil.de/shared/data/pdf/pdfmpunyb/08_jumaii.pdf.
18 See Gomezi KF “Rethinking the Role of Amicus in International Investment Arbitration: How to Draw the Line Favorably for Public Interest Litigation” (2012) 35 Fordham International Law Journal 510.
It is against this background that we proceed to explore the role of amicus curiae
in human rights litigation in South Africa and Uganda before discussing the lessons that
the latter can learn from the former.
3 THE SOUTH AFRICAN APPROACH
The participation of amicus curiae in litigation is a well-established practice in South
African legal history. Indeed, the South African courts “are increasingly recognizing that
certain matters…must necessarily involve the perspectives and voices of organisations
or entities that may not have a direct legal interest in the matter…”20
The first description of the role of an amicus in South African law reports can be
traced to the 1939 case of Connock’s (SA) Motor Co Ltd v Pretorius21 in which Millin J
stated that “the definition of the term is to be found in several legal dictionaries [that]
speak of an amicus as a bystander – someone who is present in court and not concerned
with the matter in hand, who may be counsel or may not.”22 The judge went on to
describe an amicus as someone who, “if he observes the judge in doubt about
something… asks leave to come to his assistance…and help the judge by pointing out
what appears to be in danger of being overlooked.”23 This traditional role of amicus, as
then perceived, has since changed considerably. Today, the amicus fulfils a wider range
of functions and plays a much more formal role in litigation.
The significance of the role of amicus curiae has been acknowledged and
recognised in South Africa through legislative and judicial practice. Legislatively,
provision was first made for amicus curiae through the Constitutional Court Rules in
1995.24 In the year 2000 a rule modelled upon the Constitutional Court Rule 10 was
introduced into the rules regulating practice in the High Courts.25 Essentially, Rule 10 of
the Constitutional Court Rules provides guidelines as to who can act as an amicus curiae
in a Constitutional Court hearing. In that regard, the rule provides that any person
interested in any matter before the Court may, with the written consent of all the
parties, be admitted as an amicus curiae.26 Under Rule 10(4), if consent is not given by
the parties to the case, an application may be made to the Chief Justice. The rule also
provides for the form and content of an amicus curiae application.27 Essentially, the
application should briefly describe the interest of, and the position to be adopted by, the
20 See Brickhill J and Du Plessis M “Two’s Company. Three’s a Crowd in Investor-State Arbitration (Piero v
South Africa)” (2011) 27(1) South African Journal on Human Rights 152
21 1939 TPD 355.
22 Ibid. at 356.
23 Ibid. at 357.
24 Initially Rule 9 of the Constitutional Court Rules of 1995, now Rule 10 of the Constitutional Court Rules of 2003.
25 Rule 16A of the Rules Regulating the Conduct of Proceedings of the Several Provincial and Local Divisions of the Supreme Court of South Africa 1965 inserted by GN 849 of 25 August 2000.
26 Rule 10(1).
27 Rule 10(6).
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amicus. It should also set out the submissions and state their relevance to the
proceedings.28 Rule 16A of the High Court Rules, which is drafted along the same lines
as Rule 10 of the Constitutional Court Rules, provides for submission by amicus curiae in
a High Court.
The role of amicus curiae in human rights litigation in South Africa can best be
understood through an examination of court decisions and pronouncements on such
role. It should be noted, however, that while the amicus curiae procedure has been used
in a number of cases, its impact has mainly been felt in economic, social and cultural
rights (ESCRs) litigation. Amicus curiae briefs have in these cases helped the courts to
clarify the obligations that these rights give rise to and in developing judicial
approaches that would assist the courts in handling the intricate issues which these
rights give rise to. Commenting on the case of Government of the Republic of South Africa
and Others v Grootboom and Others (Grootboom case),29 Justice Albie Sachs, one of the
judges that sat in the case, has said:
“I might mention that we were helped at the hearing in a most considerable way by the
participation of the Human Rights Commission and the Community Law Centre of the University
of the Western Cape. Counsel for the Legal Resources Centre appeared on their behalf and
succeeded in broadening the debate so as to require the Court to consider the right of all South
Africans to shelter, whether they had children or not. .... The case showed the extent to which
lawyers can help the poor to secure their basic rights”.30
Some of the cases in which amicus curiae have featured and made an impact are
illustrated below.31
In Mazibuko and Others v City of Johannesburg and Others32 Mazibuko and four
other residents of Phiri, Soweto challenged, firstly, the City of Johannesburg’s Free Basic
Water policy in terms of which six kilolitres of water were provided monthly for free to
all households in Johannesburg and, secondly, the lawfulness of the installation of pre-
paid water meters in Phiri. The three respondents were the City of Johannesburg,
Johannesburg Water and the national Minister for Water Affairs and Forestry and the
Centre for Housing Rights and Evictions (COHRE) (an international non-governmental
organisation which works to promote and protect economic, social and cultural rights)
was admitted as amicus curiae to address the issues that arose in the appeal in the
context of international and comparative law on the right to water. The Constitutional
Court held, firstly, that section 27 places an obligation on government to take
reasonable legislative and other measures to seek the progressive realisation of the
right to water and, secondly, that the installation of the meters was neither unfair nor
discriminatory. COHRE’s role was crucial as it addressed the court on important issues,
28 Rule 10(6).
29 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).
30 Sachs A “The Judicial Enforcement of Socio-Economic Rights: The Grootboom Case” in Jones P and Stokke K Democratising Development: The Politics of Socio-Economic Rights in South Africa (2005), 131.
31 The cases are presented and discussed in no particular chronological order and there is no particular criteria applied other than the role played by amicus curiae in all of them.
32 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC).
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including; the duty to consider international and foreign law, the right to water in
international law, the positive right to free basic water, the negative right to water, the
procedural challenge to pre-payment meters and the equality challenge.
Equally crucial was the role played by various amici in The Minister of Health and
Others v Treatment Action Campaign (TAC) and Others (2) (TAC case).33 The case
concerned public health care rights afforded to individuals under the Constitution and
the state’s obligation to take reasonable measures to realize those rights. Parties to the
matter were the Minister of Health and the Treatment Action Campaign (TAC), The
Institute for Democracy in South Africa (IDASA), the Community Law Centre (CLC) and
Cotlands Baby Sanctuary were admitted as amici curiae. The main issues in the case
revolved around; firstly, the right of access to public health care services and the right of
children to be afforded special protection and, secondly, whether the government was
constitutionally obliged to plan and implement an effective, comprehensive and
progressive programme for the prevention of mother-to-child transmission of HIV
throughout the country. In upholding the decision of the lower court, the Constitutional
Court pointed out that it was constitutionally bound to require the state to take
reasonable measures to meet its constitutional obligations and to subject the
reasonableness of these measures to evaluation. The Court further held that the
government’s policy fell short of compliance with sections 27(1) and (2) of the
Constitution and found that the government had not reasonably addressed the need to
reduce the mother-to-child transmission of HIV. Amici curiae played a significant role in
this TAC case. As mentioned above, three parties were admitted as amici curiae. IDASA
and CLC combined their submissions in one set of heads of argument and Cotlands Baby
Sanctuary made separate submissions. IDASA and CLC’s submission focused on two
primary issues, firstly the right of access to health care services and secondly, the rights
of children to basic health care services. Cotlands Baby Sanctuary’s submissions
considered the reasonableness of measures taken by the State to make available in its
public health care system an affordable drug that can significantly reduce the risk of a
child being born HIV positive and thus with a life-threatening condition, amongst
others. The TAC case is seen as one of the success stories of public interest litigation in
South Africa and the role of amicus in that success cannot be overemphasized. Needless
to say, that the Court accepted the arguments advanced by the amici as reflected in the
judgment.34
The clearest and most succinct pronouncement on the role of amicus was made
in a case related to the TAC case. In Re: Certain Amicus Curiae Applications; Minister of
Health and Others v Treatment Action Campaign and Others35 dealt with various
applications for admission as amici curiae to adduce further evidence in the appeal by
33 2002 (5) SA 721; 2002 (10) BCLR 1033.
34 See for example para 26 of the judgment where the Court considered and accepted the line of argument presented on behalf of the first and second amici (IDASA and CLC) regarding the concept of “minimum core” in relation to section 27(1) of the Constitution.
35 2002 (5) SA 713 (CC).
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the government against orders made against it by the High Court in the aforementioned
case. In passing its judgment, the court spelt out the role of amicus curiae as follows:
“The role of an amicus is to draw the attention of the court to relevant matters of law and fact to
which attention would not otherwise be drawn. In return for the privilege of participating in the
proceedings without having to qualify as a party, an amicus has a special duty to the court. That
duty is to provide cogent and helpful submissions that assist the court. The amicus must not
repeat arguments already made but must raise new contentions; and generally these new
contentions must be raised on the data already before the court. Ordinarily it is inappropriate for
an amicus to try to introduce new contentions based on fresh evidence.”36
Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others37 dealt with
an application for leave to appeal against the judgment of the Supreme Court of Appeal
which had held certain regulations promulgated by the applicant to be invalid. The
regulations purported to regulate the prices of medicine, across the supply chain. The
Treatment Action Campaign and Innovative Medicines South Africa were admitted as
amici curiae. The Court held that a litigant cannot avoid the provisions of the Promotion
of Administrative Justice Act by relying on section 33 of the Constitution. The Court
accepted the validity of a single exit price for medicines sold in South Africa and the
validity of the regulatory structure put in place for its realisation. As to the dispensing
fee, the majority of the Court found it to be inappropriate and invalid.
As amicus, the Treatment Action Campaign (TAC) submitted that certain
regulations unreasonably and unjustifiably limited the right of access to medicines
(section 27(1)) and that regulations 10 and 12 failed to give effect to the state’s
obligations in terms of section 27(2). They argued that the probative pricing of
medicines may be tantamount to a denial of the right of access to health care. On this
matter, the court found that although the dispensing fee set by regulations 10, 11 and
12 was appropriate, there was no evidence that the Minister or the Pricing Committee,
in formulating the dispensing fee, had applied their minds properly or at all to issues of
access and affordability of medicines in relation to rural and courier pharmacies. Thus,
to this extent only, the dispensing fee set by regulations 10 and 11 was inappropriate
and invalid.
Omar v Government of the Republic of South Africa and Others38 is another case in
which amicus curiae played an important role. The applicant was challenging the
validity of the Domestic Violence Act39 section 8 of which mandated the issuance of an
arrest warrant pursuant to a criminal protection order. The Court dismissed the
application and held that the possibility that complainants will exploit, manipulate or
misuse the procedure provided by section 8 did not render the Act unconstitutional.
The Commission for Gender Equality was the only amicus admitted in this matter. They
advanced submissions dealing with the context of the Domestic Violence Act, the
context of the present application, the constitutional framework within which the
36 2002 (5) SA 713 (CC) para 5.
37 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC).
38 2006 (2) BCLR 253 (CC); 2006 (2) SA 289 (CC).
39 116 of 1998.
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application falls, the relevant international law instruments, the legislative scheme in
respect of section 8, the legislative history and background thereto as well as the
constitutional imperatives sought to be advanced. More importantly, they argued that
the recognition and protection of the right of every person to physical safety and
integrity was recognised by the South African courts even prior to the advent of the
current constitutional democracy. Furthermore, they argued that this right is now
entrenched in section 12(1)(c) of the Constitution and is bolstered by several other
related rights. These submissions were of great assistance to the court and many of
them were clearly taken into consideration in arriving at the decision as reflected in the
judgment.
Carmichele v Minister of Safety and Security and Another40 dealt with the
constitutional obligation on the courts to develop the common law to promote the
spirit, purport and objects of the Bill of Rights. The specific issue was whether the High
Court and the Supreme Court of Appeal ought to have broadened the concept of
“wrongfulness” in the law of delict in the light of the State’s constitutional duty to
safeguard the rights of women. Appearing as amicus, the Centre for Applied Legal
Studies’ argued that there is nothing more invasive and more undermining to human
dignity than sexual violence and that women are particularly vulnerable to sexual
violence. They also argued that sexual violence and the threat thereof go to the core of
women’s subordination in society. The Court held that, although the major engine for
law reform should be the legislature, courts are under a general duty to develop the
common law when it deviates from the spirit, purport and objects of the Bill of Rights.
The court was also of the view that the State is obliged by the Constitution and
international law to prevent gender-based discrimination and to protect the dignity,
freedom and security of women. As is apparent from the judgment,41 amicus curiae’s
submissions were of some significance to the court which was in agreement with many
of the arguments.
The length and breadth of this paper do not lend themselves to a detailed
discussion on all cases that have involved amicus curiae. Suffice to say that there are
numerous other human rights cases that have come before the South African courts
(particularly the Constitutional Court) wherein amicus curiae played an important role.
These include Laugh It Off Promotions CC v South African Breweries International
(Finance) BV t/a Sabmark International and Another42 in which the Freedom of
Expression Institute (FXI) was admitted as amicus curiae. FXI was also amicus curiae in
NM and Others v Smith and Others.43 In Du Toit and Another v Minister of Welfare and
Population Development and Others44 the Lesbian and Gay Equality Project was the
40 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC).
41 See for example para 62 of the judgment where the court made specific reference to the threat of sexual violence to the self-determination of South African women.
42 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC).
43 2007 (5) SA 250 (CC); 2007 (7) BCLR 751 (CC).
44 2002 (10) BCLR 1006; 2003 (2) SA 198 (CC).
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amicus and in Hassam v Jacobs NO and Others45 the Muslim Youth Movement of South
Africa and Women's Legal Trust were the amici curiae. Mention should also be made of
S v M46 in which the Centre for Child Law at the University of Pretoria, was the amicus.
The role of amicus curiae in human rights litigation in South Africa has to be seen
in the general context of public interest litigation which was born out of the apartheid
era as part of the political struggle in which human rights activists and civil society
organisations sought to fight the apartheid regime through advocacy, mobilisation and
litigation. With the advent of democracy, there was “an inevitable shift from challenging
an unjust system towards litigating cases that are aimed at enforcing rights enshrined in
the Constitution.”47 This has been greatly helped by the liberal position adopted by the
South African Constitution on locus standi for those wishing to enforce the rights in the
Bill of Rights of the Constitution by litigating in the public interest. Although,
technically, locus standi can be distinguished from the amicus curiae procedure, the
courts have applied the same locus standi flexibility to the amicus curiae procedure.
The role of amicus curiae also has to be seen in the context of the prevalence of
human rights NGOs in South Africa. Again, due to its unique history, South Africa is
known to have numerous human rights NGOs. Many of these have either used the
liberalized standing requirement to initiate court cases or have sought to be admitted as
amicus curiae on behalf of individuals or groups in litigation on various human rights
issues. Indeed in many of the cases discussed earlier, most of the parties that appeared
as amici curiae were NGOs. In that respect, the Treatment Action Campaign (TAC), the
Freedom of Expression Institute (FXI) and the Institute for Democracy in South Africa
(IDASA) have been particularly active and most successful. To that list should be added
Lawyers for Human Rights (LHR) which has been involved in several Constitutional
Court cases including the famous S v Makwanyane and Others48 which abolished the
death penalty. In addition to the NGOs, university-based research centres and clinics
have also played a big role in developing the amicus curiae procedure. These centres
have taken advantage of their research capacity to make precise and clearly pointed
intervention supported by research evidence. Examples in this regard include the
Community Law Centre (CLC) at the University of the Western Cape, the Centre for
Child Law at the University of Pretoria, and the Centre for Applied Legal Studies (CALS)
47 See Badwaza YM, “Public Interest Litigation as Practiced by South African NGOs: Any Lessons for Ethiopia?” Unpublished LLM submitted to the University of Western Cape (2005) 36.
48 195 (3) SA 391 (CC).
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4 THE UGANDAN APPROACH
4.1 The public interest litigation context
The need for legal provisions on the subject of amicus curiae in Uganda should be
understood in the context of the state of public interest litigation in the country. While
the legal system offers a number of opportunities for public interest litigation to
flourish, it is also riddled with a number of challenges that stifle this form of litigation.49
It is submitted that vigorous use of the amicus curiae procedure could help unlock some
of these challenges. For instance, although the courts have progressively enforced the
provisions of the Constitution by relaxing the rules of standing, the courts have not been
as pragmatic as one would have expected them to be in giving meaning to the rights in
the Bill of Rights. ESCRs have suffered the most in this respect. This is partly
attributable to the manner in which cases have been instituted and argued, sometimes
by lawyers with limited experience and knowledge of human rights litigation. This is in
addition to the failure to build strategic partnerships that would bring value to the
cases. In these cases, public interest participants not party to the cases have not
featured, not because they have tried and failed, but partly because the procedures of
intervention are not adequately developed and the amicus curiae procedure has not
been established as part of legal and judicial practice.
Compared to its neighbours in the East African region, Uganda has a fairly
progressive legal framework that allows for public interest litigation to flourish,
especially with regard to the enforcement of human rights. Indeed, the legal framework
in some contexts compares well with the South African one. In the first place, the
Constitution of Uganda includes a Bill of Rights, which creates a wide array of rights,
including civil and political, and ESCRs. The contrast with South Africa here though is
that the Ugandan Bill of Rights does not comprehensively protect ESCRs in the body of
the Constitution as fully justiciable rights. Instead, the bulk of these rights are protected
merely as directive principles of state policy, contained in the preamble of the
Constitution. The location of the ESCRs in the preamble was not coincidental but a
product of deliberate design. After deliberation, the Uganda Constitutional Commission
concluded that not all rights were amenable to judicial enforcement and that some
could be protected only as part of the National Objectives and Directive Principles of
State Policy (NODPSP).50 Nonetheless, the introduction in 2005 of Article 8A in the
Constitution has breathed life into the NODPSP. Article 8A provides as follows:
“8A. National interest
(1) Uganda shall be governed based on principles of national interest and common good enshrined in
the national objectives and directive principles of state policy
49 See Mbazira C, Public Interest Litigation and Judicial Activism in Uganda: Improving the Enforcement of
Economic, Social and Cultural Rights, Human Rights and Peace Centre Working Paper No. 24 (2009).
50 See Oloka-Onyango J Interrogating NGO Struggles for Economic, Social Rights in Contemporary UTAKE: A Perspective from Uganda Human Rights & Peace Centre Working Paper No. 4, 2006.
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(2) Parliament shall make relevant laws for the purposes of giving full effect to clause (1) of this
Article”.
Article 8A should be viewed as an important tool for the enforcement of ESCRs in the
courts of Uganda. It has been argued that Article 8A makes provision for the application
of the Objectives in interpreting the Constitution: “the place of Article 8A in the body of
the Constitution is a clear indication that the country is bound by the Objectives”.51 The
potential of the provision is bolstered by the constitutional mandate conferred on the
courts to protect and enforce the Bill of Rights. The Constitution in the first place
entitles any person who claims that a fundamental or other right has been infringed or
is threatened to apply to a competent court for redress.52 The provision describes
persons who may bring such action to include any person or organisation bringing
action against the violation of another person’s or group’s rights.53 The courts have
construed this provision as extending standing to public interest litigants.54 To justify
Article 50, the courts have adopted the biblical metaphor of “brother’s keeper” to argue
that violation of any human right of one person is the violation of the rights of all.55
In terms of a judicial mandate, the Constitution creates a specialised
Constitutional Court, with a mandate to entertain and consider any questions as to the
interpretation of the Constitution.56 Under Article 137(3) of the Constitution, “Any
person alleging that an Act of Parliament or any other law or anything in or done under
the authority of any law or that any act or omission by any person or authority is
inconsistent with or in contravention of a provision of the Constitution, may petition the
Constitutional Court for a declaration to that effect, and for redress where
appropriate.”57 In addition to the Constitutional Court, the High Court is also by virtue
of Article 50 empowered to enforce the Bill of Rights in favour of any person who
alleges that his or her rights or the rights of another person have been infringed. It is on
the basis of this provision that the courts have made a distinction between
“enforcement” of the Bill of Rights under Article 50, which is within the jurisdiction of
the High Court, and “interpretation” under Article 137 which is within the jurisdiction of
the Constitutional Court.58
As regards interpretation, the courts have adopted special rules of interpreting
the Constitution, based on the reasoning that the task of expounding the Constitution is
crucially different from that of construing other statutes. According to the courts, the
Constitution must be interpreted in a manner that makes it capable of growth and
51 Mbazira (note 49 above), 9.
52 Article 50(1).
53 Article 50(2).
54 See British American Tobacco (BAT) v the Environment Action Network (TEAN) Civil Application No. 27 of 2003.
55 See Advocates Coalition for Development and Environment, Miscellaneous Cause No. 140 of 2002.
56 Article 137(1).
57 Arttcle 137(3).
58 See Uganda Journalist Safety Committee and Anor v Attorney General, Constitutional Petition No. 6 of 1997.
AMICUS CURIAE IN UGANDA AND SOUTH AFRICA
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development overtime to meet new realities unimagined by its framers.59 The Courts
have also adopted the two-stage approach in interpreting the rights in the Bill of Rights.
Under this approach, at the first stage, all that a petitioner does is to prove facts which
establish violation of a protected right. At the second stage the burden shifts to the
respondent to justify the violation as falling within the limitation provision in Article
43.60
Although a number of decisions enforcing various aspects of the rights in the Bill
of Rights have been made, the courts have not been consistent as regards the
enforcement of ESCRs. In Salvatori Abuki and Another v The Attorney General, the Court
relied on the Indian approach to use the right to life read together with the NODPSP to
find that a law which authorised the banishing from the village of a “witch” was
unconstitutional to the extent that it excluded the person banished from shelter, food
and to land which is a means of sustenance. The approach in this case suggests that the
Court was prepared to use the integrated approach as used in India to uphold enforce
the various economic and social rights reflected in the NODPSP. Unfortunately,
however, this approach has not been followed in subsequent cases as is seen in the
recent case of Center for Health, Human Rights and Development & Others V Attorney
General (Maternal Health case).61
The Maternal Health case arose out of senseless maternal and infant mortalities
arising from either the negligence of medical staff or absence of basic medical facilities
and drugs at public health care facilities. In the Petition, it was alleged that the acts of
negligence of the medical personnel, combined with the lack of basic medical facilities
amounted to violation of the right to reproductive health care. At the hearing of the
matter, the state raised a preliminary objection, arguing that the petition raised issues
that were of a political nature and outside the jurisdiction of courts on the basis of the
separation of powers doctrine. The Court upheld the objection, while expressing
sympathy with the state of health care in the country, the Court held that the “Executive
has the political and legal responsibility to determine, formulate and implement these
policies of Government”. The Court added that “[t]his duty is a preserve of the Executive
and no person or body has the power to determine, formulate and implement these
policies except in [sic] the Executive”.62 It is against this constitutional and judicial
background that the role and application of the amicus curiae procedure has to be seen.
4.2 The Ugandan approach to the issue of amicus curiae
Uganda contrasts with South Africa to the extent that there are no legislative provisions
governing the amicus curiae procedure. There is nothing on the amicus curiae in the
Civil Procedure Rules,63 which are the Rules that govern procedural aspects in civil
59 Attorney General v Major General Tinyenfuza, Constitutional Appeal No. 1 of 1997.
60 See Salvatori Abuki and Anor v The Attorney General, Constitutional Case No. 2 of 1997. See also Dimanche Sharon & Others v Makerere University, Constitutional Appeal No. 2 of 2004.
61 Constitutional Petition No. 16 of 2011.
62 Ibid, at 25.
63 SI 70 – 1, Laws of Uganda 2000.
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matters. The same applies to the Court of Appeal, Constitutional Court and Supreme
Court rules. Instead, the Civil Procedure Rules make provision for the inclusion as
defendants of persons previously not part of a suit.64 The Rules also allow for an
application to add or substitute a defendant or plaintiff.65 The subject of amicus curiae
has also not generated any academic jurisprudence. Although the Uganda Law Society
(ULS) has dealt with the subject, by way of making recommendations for express
incorporation of the amicus procedure in the Civil Procedure Rules, the ULS has not
made thorough investigations of the subject. Yet, the society has dealt with the subject
together with the one of recusal of a judge as if the two are related. The
recommendation of the Society runs as follows:
“We recommend that the principles governing applications for recusal of a judicial officer and
amicus curiae be incorporated in to the Civil Procedure Rules. The committee also recommends
that a set of rules be formulated and incorporated in the rules for instances where a person
wishes to submit an amicus brief for an unrepresented party in a suit.”66
Nonetheless, there are a number of cases which have dealt with the subject of amicus
curiae and adopted some principles to be followed by courts. In these cases, the courts
have used the definition of the term amicus curiae to determine the circumstances
under which a person may be admitted as amicus. What is clear from these cases
though is that they do not lay down elaborate principles that have to be followed. Yet,
the concept of amicus curiae has been defined in a narrow manner to mean a person
who participates in the proceedings at the invitation of the Court.67 This has meant one
cannot apply to participate in a case as amicus curiae, it is only court which can on its
own initiative invite any person it thinks can assist in the case as amicus. This contrasts
with the South African procedure, which has illustrated above allows any person to
apply to court to be admitted in a case as amicus curiae.
The absence of provisions in the law on the amicus curiae procedure means that
the Ugandan courts have to resort to the common law for principles that govern the
procedure. The problem though is that unlike other areas of law, as indicated above, the
common law has not developed elaborate principles on the subject of amicus curiae. The
position of the common as understood by the legal fraternity in Uganda is summarised
by Ssekaana and Ssekaana in their textbook, which is the first comprehensive
interpretation of the Civil Procedure Rules, as follows:
“In its ordinary use the term implies a friendly intervention of counsel to remind the court of
some matter of law which has escaped its notice in regard of which it is in danger of going wrong.
It seems that such a person is not a party to an action but one who calls the attention of the court
to some decision or point of law which appears to have been overlooked... Where the
intervention would only serve to widen the case between the parties or introduce a new cause of
action, the intervention should not be allowed. An amicus curiae is not a party to an action, has
64 See Order 1 Rule 20 of the Civil Procedure Rules.
65 Order 1 Rule 10 of the Civil Procedure Rules.
66 Kasirye A “Uganda Law Society Report of the Ad Hoc Committee on the Reform of the Civil Procedure Rules”, (March 2012).
67 See Oboth Marksons Jacobs v National Resistance Movement, Miscellaneous Application No. 108/2010, High Court of Uganda, Mbale.
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no control over it and generally should not be allowed costs. The right of an amicus curiae to
address the court is purely discretionary and is not dependent upon the consent of the parties to
the proceedings”.68
As elaborate as the above explanation of the law appears, it does not set out the law
with sufficient clarity, and the language regarding the role of amicus, leaves room for
doubt. As can be deduced from some of the cases discussed below, the courts in Uganda
have conceived the principles of amicus curiae in the context of private law civil suits
contested on an individual basis. In such suits, what matters are the interests of the
parties, which could explain why the amicus curiae should not be allowed to introduce a
new matter or cause of action. Although the courts in Uganda indicate awareness of
existence of the amicus curiae procedure, they have not developed this procedure,
particularly in public law cases. The only principle which has consistently come out
from the limited jurisprudence is the principle that a person with an interest in the
matter cannot be amicus curiae.69 This notwithstanding, in some cases the courts have
confused the amicus procedure with the third-party notice procedure. In the 2009 case
of Inspectorate of Government and Another v Blessed Constructors Limited (Inspectorate
of Government case),70 the trial judge had allowed the application of the First Appellant
to be added to the suit and had added it as “a defendant and amicus”. Although this
decision was reversed by the Court of Appeal, the approach of the High Court Judge
shows the limited understanding of the concept of amicus curiae within the Uganda
judiciary and on the part of some lawyers. The basis upon which the Court of Appeal
reversed the High Court directive was on the ground that “an amicus curiae is invited by
the Court and he should be an independent person without proprietary interest in the
case”.71 The Court found that the Inspectorate of Government had carried out the
investigations which resulted into the Respondent being denied money for services they
considered to have offered and for which they sued the Second Appellant in breach of
contract.
In 2010, in the case of Oboth Marksons Jacobs vs National Resistance Movement,72
the Applicant challenged the processes which had been followed by the National
Resistance Movement (NRM), a political party, in organizing its primary elections.
Before the hearing, one Kamuduni Amuzata, who described himself as a voter, filed an
affidavit in response to the Application indicating that he felt duty bound to correct
what he called falsehoods in the Applicant’s statements. The Respondent’s counsel had
argued that the deponent felt duty bound not only as amicus curiae but also as an
interested respondent’s voter to correct falsehoods tendered by the Applicant so that
the court may arrive at a fair decision. The Court rejected this argument, stating that
the law allowed a person to appear on another’s behalf either as an agent or as
68 Ssekaana M., and Ssekaana, S., Civil Procedure and Practice in Uganda (2010) Law Africa, at 50.
69 See Attorney General v Silver Springs Hotel & Anor, Supreme Court Civil Appeal No. 1 of 1998; and Edward Frederick Ssempebwa v Attorney General, (1992) VI KALR 160.
70 Civil Appeal No. 21 of 2009.
71 Ibid.
72 Oboth Marksons Jacobs v National Resistance Movement (n 67 above).
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advocate, Kamuduni was not any of these. The Court also rejected Kamuduni as amicus
curiae:
“[F]or orderly conduct of litigation, parties must have the authority to summon their witnesses.
One cannot simply walk into a court room and announces himself as a witness unsolicited.
Secondly, amicus curiae means a friend of court. Therefore court should be left to choose or
approve its friends. To ensure orderly proceedings witnesses must be summoned by parties to
the suit or court. Amuzata cannot qualify to be amicus curiae”.73
In 2011 the High Court in Soroti Joint Medical Services Ltd vs Sino Africa Medicines and
Health Ltd,74 rejected an application by the Respondent that certain issues, including
whether it was in the public interest to settle the matter by arbitration, should be
submitted to the amicus curiae which should be the Centre for Arbitration. The Court
held that an amicus curiae gives an opinion to court on any matter which the court may
take into account before it delivers judgment. According to the Court, there was no
reason at that stage why the Court should appoint an amicus curiae and no reasons had
been advanced by the Respondent as to why it deems that a friend of court is necessary
in this matter: “[i]f the court needs assistance it is upon it to seek the opinion of an
amicus curie on any matter”. It is clear from this case is that the Court confuses the
amicus curiae procedure with arbitration. As seen above, the issue was whether the
matter should be referred to arbitration and not whether an amicus curiae should be
appointed. This adds to the confusion seen above in the Inspectorate of Government case
where the trial judge had confused the amicus curiae procedure with the third party
notice procedure.
In the old case of Dritoo vs West Nile District Administration,75 the Court held that
a Court can ask the Attorney General to appear as an amicus curiae if it considers that
the interests of justice would be served and that the Solicitor General should be heard
on the ground that his argument would assist the court to make a correct and just
decision. This unelaborated case goes to show the emphasis which the Court puts on
the principle that amicus curiae can only be admitted at the invitation of court.
5 LESSONS FOR UGANDA
South Africa is evidence of the potential of the amicus curiae procedure in ensuring the
growth of judicial jurisprudence in ways that enhance promotion and protection of the
rights protected in the Constitution. Although South Africa is a young democracy, it has
achieved a lot in terms of constitutional jurisprudence. The country’s jurisprudence is
now being followed by courts in Africa and beyond. This tremendous growth has partly
been realised as a result of the contributions made by the various amicus interventions
which have helped to enhance the quality of judicial rulings. A number of organisations,
including university-based clinics and centres have taken the role of amicus seriously. In
those cases in which intervention has been deemed appropriate, the interventions have
73 Ibid, at 5.
74 Miscellaneous Application 452 of 2011, arising out of Commercial Division Civil Suit No. 415 of 2011.
75 (1968) EA 428.
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been informed by the need to add value to the proceedings. The amici have in this
regard informed their interventions with concrete evidence-based research, which has
also been presented to the courts in the most competent manner. In many cases the
amicus interventions have been argued by very senior legal practitioners.
The lesson here is that amicus intervention should be justified by the need to add
value to a case. This means that before a person applies to be joined as amicus, they
should be sure that they are not simply duplicating the input of the parties but are
giving a perspective which would otherwise have been missed, yet when brought out
would make a significant contribution to the outcome of a matter. The intervention
should also be informed by concrete and evidence-based research.
One of the reasons the amicus curiae procedure has flourished in South Africa is
because of the fact that it is expressly catered for in the rules of procedures of the
courts.76 The law, as seen above, has set out the procedures for applying for amicus and
given the courts legal mandate which has been used to define the judicial pre-requisites
for the application to be allowed. As indicated above, the rules state with sufficient
detail the matters which have to be set out in the application. The courts have also been
receptive to amicus curiae applications. The positive response has been based on an
appreciation on the part of the judges of the importance of this procedure.
The authors see no reason why Uganda should not replicate the rule on amicus
curiae as reflected in the rules of court in South Africa, which requires that the parties
should in the first place first seek the consent of the parties and only approach the court
if such consent has been denied. It is important however to stress that the court should
reserve the power to reject the amicus curiae even when consent has been obtained if
the court thinks that the amicus curiae is unlikely to add value to the proceedings. In
such cases, however, it should be a rule that the intending amicus curiae is heard by
court before a final decision is made on whether or not to admit the amicus.
Access to justice in Uganda, like in many African countries is limited, especially
for vulnerable and marginalised groups and individuals. This limited access is due to a
number of factors. The major factor though is poverty, which makes it hard for many
Ugandans to access legal services and to meet the costs related to accessing legal
services such as court fees and transport to and from courts.77 As a result, many poor
people suffer violation of their rights without any redress. Because of its expensive
nature, litigation has remained a preserve for the wealthy. What the South African
experience teaches is that the amicus curiae procedure can be used to close gaps related
to limited access to justice for the poor. The procedure can be used to bring the
interests of the poor to the forefront in legal matters in which such interests may have
been ignored. As mentioned earlier, in the case of South Africa, this has been made
possible by well-organised groups and organisations, committed to the protection of the
rights of the vulnerable. These groups and organisations have, in addition to such
76 See for instance Rule 10 of the Constitutional Court Rules, 2003.
77 Obura H “Facilitating Access to Justice through Legal Aid: Models, Laws and Practices in East Africa: A Case of Uganda,” Paper presented at the Eighth East African Judicial Conference, May 2010, Arusha, Tanzania, available at <http:// www.eamja.org/Papers%20to%208th%20EAMJA%20Conference>.
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strategies as advocacy and human rights training and education, used research and
litigation as a tool for the protection and promotion of human rights. The groups have
used the amicus curiae procedure as a tool of sharing their research with the judiciary
and using research findings to influence the outcome of judicial decisions.
The lesson for Uganda in this regard is that there is need to build and nurture
organisations committed to the protection of the rights of the vulnerable. While exact
numbers may not be known, Uganda is not short of such organisations,78 it is important
that as these organisations embrace litigation as a strategy, research should be viewed
as an important tool to facilitate litigation. To cover their research deficiencies, some
organisations in South Africa have partnered with university-based centres and clinics.
Examples of such centres, as mentioned earlier, include the CLC of the University of the
Western Cape,79 the Center for Human Rights at the University of Pretoria, the Centre
for Child Law at the University of Pretoria80 and University of Wits’s CALS.81 Uganda is
not short of university-based centres of this nature. The Human Rights & Peace Centre
(HURIPEC) and the Public Interest Law Clinic (PILAC), both of the School of Law,
Makerere University are examples.82
Another important ingredient that has made the amicus curiae procedure
possible is judicial activism. The judges have entertained the procedure and viewed it
as a tool for enriching their jurisprudence. As a judiciary in a new democracy, judges
have been eager to entertain and consider all shades of opinion and listen to a diversity
of voices within the community.
Amicus briefs and presentations in South Africa have also been done by senior
members of the legal profession, including academics and legal practitioners. This goes
to show the seriousness with which the procedure has been handled. The approach has
also blended legal academics with legal practitioners. On the contrary, legal academics
and practitioners in Uganda polarise each other, which has denied the legal profession
the unique knowledge which the blend may produce.
In many cases in South Africa, the amici curiae have in some cases based their
arguments on international human rights law and brought to the fore international
jurisprudence on various aspects. This has enriched domestic judicial decisions with
international jurisprudence and in some cases forced the courts to engage with debates
at the international level. The minimum core obligations approach debate that featured
in the Grootboom and TAC cases is an example of this.
78 See Development Network of Indigenous Voluntary Associations (DENIVA) Civil Society in Uganda: At
the Crossroads? < https://www.civicus.org/new/media/CSI_Uganda_Country_Report.pdf> (accessed on 10 June 2012).
79 See <http://www.communitylawcentre.org.za>
80 See <http:// www.chr.up.ac.za>
81 See < www.wits.ac.za/academic/clm/law/cals/11159/cals_home.html>