Centre For Health, Human Rights and Development (CEHURD), et al. v. The Attorney General

Constitutional Petition No. 64 of 2011
Download Judgment: English

The Centre for Health, Human Rights and Development (“CEHURD”) alleged that Uganda passed laws that were (1) degrading to mentally challenged individuals and (2) contrary to the Ugandan Constitution (“Constitution”).

The factual issue at hand involved the claim that people with mental disabilities were being detained for long and indefinite periods of time without due process. Furthermore, it was alleged that these people’s “personal integrity and dignity” were being denigrated as they were referred to as “idiots” and “imbeciles” in the texts of the challenged legislation.

The specific legal provisions contested were:

  1. Sections 45(5) and 82(6) of the “Trial on Indictments Act,” claimed to be in violation of the right to liberty and freedom from discrimination of persons with mental disabilities under Articles 21 and 23 of the Constitution;
  2. Section 130 of the “Penal Code Act,” claimed to be in violation of the right to dignity of persons with mental disabilities under Article 24 of the Constitution; and
  3. Section 130 of the “Penal Code Act,” claimed to be in violation of the right to freedom from non-discrimination under Article 21 of the Constitution.

The Court held that Section 45(5) of the Trial on Indictments Act was unconstitutional as it referred to untried mentally challenged individuals “criminal lunatics,” contrary to Article 28(3) of the Constitution. The Court followed the reasoning from a previous case, Purohit and Moore v. The Gambia, No. 241/2001 (2003), which held that indefinitely detaining a person with a mental illness constituted discrimination and was contrary to due process.

The Court next held that Section 82(6) of the Trial on Indictments Act should be modified using Article 274 of the Constitution. The Court noted that the United Nations Declaration on Human Rights (“UDHR”), the International Convention on Civil and Political Rights (“ICCPR”), and the African Charter on Human and People’s Rights require equality before the law, equal protection of the law, and non-discrimination. Furthermore, the Constitution requires a court to investigate whether a person is deemed incapable of defending themselves. In order to do so, the Court stated that it is best that medical evidence from a psychiatrist be used to determine the mental state. The Court modified the language of Section 82(6) accordingly.

Finally, the Court held that Section 130 of the Penal Code Act violated the Constitution, and the Court altered the wording. Specifically, the words “idiots” and “imbeciles” in Section 130 were held to contravene Articles 20, 21(1)-(3), 23, 24, 28, and 35 of the Constitution as they were derogatory and detracted from persons’ dignity. Following Article 274 of the Constitution, the Court replaced those words with the phrase “woman and girl to be mentally ill or impaired.”

“We note that all the above international and regional instruments have as one of their core principles respect for human rights and fundamental freedoms without discrimination. The UDHR stipulates that all human beings are born free and equal in dignity and rights. The ICCPR and the African Charter provide for equality before the law and equal protection of the law and non-discrimination. The right to liberty and security of persons is guaranteed by both the ICCPR; the UNCRPWED and the African Charter.” Page 10, lines 14-21.

“The term ‘lunatic’ imputes to the mind of the accused guilt for an offence for which he/she may not have been fully tried. This contravenes the constitutional principle of the presumption of innocence embodied in Article 28(3) of the Constitution.” Page 18, line 27- Page 19, line 2.

“The words ‘idiots’ and ‘imbeciles’ are derogatory and detract from the dignity that should be accorded to all disabled persons under Article 24 [of the Ugandan Constitution].” Page 26, lines 4-6.