Expunging the ghost of Innocent Ngobi Ndiko: Appraising the Constitutional court’s decision on ‘no fault’ divorce in Uganda

This week, on Monday 18th August 2025, the Constitutional court of Uganda delivered judgment in the case of Innocent Ngobi Ndiko and Others v Attorney General and Another (Constitutional Petition No.23 of 2020).

The decision is as interesting (and voluminous) as it is unfortunate. It immediately brought to mind that famous article by Professor Joe Oloka-Onyango, in the 1996 edition of the Makerere Law Journal, titled ‘Expunging the Ghost of Ex parte Matovu: Challenges Facing the Ugandan Judiciary in the 1995 Constitution’.

Professor Oloka-Onyango would additionally reflect on the Ex Parte Matovu apparition in his inaugural lecture, delivered at Makerere University on 12th November 2015, entitled ‘Ghosts and the Law’.

In his inimitable way, he declared: ‘For the past 30 years of my academic career I have been battling with a ghost. Every time I believe he is dead and buried, he resurrects again and again … and again. And yes; I am pretty sure it is a ‘he.’

His name is ex parte Matovu. For any student of the Law, it is a sin not to be on intimate terms with this ghost, whose full name is Uganda v. Commissioner of Prisons, ex parte Michael Matovu.’ [at page 1 of the address] Professor Oloka-Onyango was referring to one of the most infamous decisions in our legal history, in which the Chief Justice Udo Udoma’s Court legitimized Milton Obote’s overthrow of the 1962 Constitution, and validated its successor, the 1966 ‘pigeon-hole’ Constitution.

Essentially, the ghost of Ex Parte Matovu can be understood as being constituted by judicial deference (or abdication) in the face of Executive, Presidential, Military or Legislative power (or a combination of these). It seems that, to live and work as a lawyer, legal practitioner or legal scholar in Uganda is to have to grapple with phantoms which, like the old church hymn book, are ancient and modern.

The latest ghoul, thrust on Uganda’s juridical landscape by the Constitutional court on Monday this week, is veritably that 125-page decision in Innocent Ngobi Ndiko. So, what is the nature of this new spectre?

Like other ghosts, it is a shape-shifter, with multiple faces. Indeed, Professor Oloka-Onyango warned, in his 2015 address, that ghosts would tend to have this special feature, observing: ‘… as you all know, ghosts in Africa — unlike in Western mythology — do not have only one side or character.

There is the good, the bad and all of the other myriad variations in between. Many times these attributes are combined together in a single spectral being.’ [at page 3 of the address] The ghost of Innocent Ngobi Ndiko is no different. It has several faces – mostly fearsome (with perhaps the sole exception of that quintessentially excellent dissent, on the core issue, by Justice Frederick Egonda-Ntende) – which in time to come will surely continue to haunt the study, practice, teaching, application and interpretation of constitutional law in Uganda.

Today, let us struggle with one face of the ghost of Innocent Ngobi Ndiko: the subordination of constitutional principle to majoritarian considerations. This visage of the phantom made its most notable appearance at pages 35 to 39 of the majority’s decision, in which the court gave great weight to submissions made by the Interreligious Council of Uganda (IRCU), to the Legal and Parliamentary Committee of Parliament, in respect of a Private Member’s Bill – the Marriage Bill, 2024.

After citing the Memorandum at length, Justice Hellen Obura (with whom Justices Eva Luswata, Moses Kazibwe Kawumi and Asa Mugenyi agreed), observed: ‘It is noteworthy that IRCU is composed as follows: 1) Roman Catholic Church; 2) Church of Uganda; 3) Uganda Muslim Supreme Council; 4) Uganda Orthodox Church; 5) Seventh-day Adventist Church in Uganda; 6) Association of Pentecostals and Evangelicals; and 7) Born Again Faith in Uganda.

According to the National Population and Housing Final Census Report 2024, the total population of Uganda was 45,905,417 persons in 2024 and the distribution of house hold population by religious domination was as follows: 1) Roman Catholic are 16,612,537 persons; 2) Anglican Church are 13,407,764 persons; 3) Pentecostal/evangelicals are 6,543,196 persons; 4) lslam are 6,051,317; 5) Seventh-day Adventist are 911,153 persons; 6) Other Religions are 704,334; 7) No Religion are 85,559 persons; 8) Orthodox are 65,150 persons; 9) Traditional religion are 56,332 persons.

Going by the above final national census report, it means the IRCU Memorandum was presented on behalf of a total of 43,525,967 persons (excluding what is categorized as other religion), which is 94.8% of the total population of Uganda.

This buttresses my earlier finding based on the constitutional provisions that the national interest of Uganda and the common good is protection of the family, marriage and the children.’ [at pages 37-38 of the decision].

The learned Justice then proceeded to note: ‘I accept the contention of counsel for the 2nd Respondent that the Petitioners are seeking to introduce no fault divorce … The net effect would be an overhaul of the divorce laws by this court without the participation of the people of Uganda through their elected representatives!

I am persuaded by the submission of the 2nd Respondent that any change that overhauls the divorce law in Uganda should be done through a legislative process that entails wide consultation with all the key stakeholders. ln my view, making divorce as easy as the Petitioners advocate for in this petition would be a recipe for social disorder in this nation contrary to the spirit of our Constitution.’ [at pages 38-39 of the decision].

These passages make for troubling reading. The province of the Judiciary is one which is distinctly different from that of its overtly political (and majoritarian) co-equal branches: the Executive and Parliament.

It is entirely legitimate for those branches to be concerned about the prevailing popular opinion. This is less so for the Judiciary, which is trusted with the mandate of ensuring the fidelity of all actors (including the political branches, and the people themselves) to the Constitutional compact.

This indeed, is part of the very idea of the separation of powers, and checks and balances – under which system the Judiciary is broadly excluded from the requirement of direct political legitimacy, so as to protect it from the inherent dangers of political subservience.

A good statement of this principle is the articulation by Alexander Hamilton in The Federalist No.78 (1788), in which he observed: ‘[The] independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community … it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community…Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today.’

Alexander Hamilton’s ancient warning holds true as true today as it did in 1788, insofar as he emphasizes the link between the independence of the Judiciary and its ability (and duty) to protect the rights and freedoms of all citizens from the vicissitudes of popular opinion.

Certainly, Article 126 (1) requires that judicial power be exercised in accordance with the norms, values and aspirations of the people. At the same time, it also requires that it be exercised in accordance with the law itself (including the Constitution).

Are the various rights stipulated in Chapter Four of the 1995 Constitution, not only an expression of the supreme law of the land but also of the norms, values and aspirations of the people of Uganda?

In any case, should there be any tension between the ‘norms, values and aspirations’ of the people, on the one hand, and the expressed terms of the Constitution should not the principle(s) expressed in the broader text of that document prevail? To put a further question – was there any value in the addition of ‘aspirations’ to the list stipulated under Article 126 (1)?

Put differently, are Ugandans to be only bound to any present ‘norms and values’ or is there also a duty to give life to certain of those ‘aspirations’ that may be intrinsically linked to the achievement of a just and humane society?

To take but one example, if the apparent ‘norms and values’ of Ugandans include lynching a person who has stolen a car side-mirror worth Ugx 25,000, should this ‘norm’ or ‘value’ not be tempered by society’s more noble (and right-enhancing aspirations), including the protection of the right to life under Article 22?

Is it not relevant, in this sense, that the test for the validity of governmental and other action (including legislation) affecting human rights – under Article 43 – is not only that of a ‘democratic’ society but also a ‘free’ one?

Does this not suggest both a commitment, and an aspiration, to a country in which majority sensibilities are tempered by considerations of what human (and indeed individual) liberty and freedom require? The approach adopted by the majority of the Court (particularly at pages 35 to 39) glosses over these critical considerations.

The real significance of the Constitutional court’s approach is really this: going forward, a petitioner seeking relief from the court would be well-advised to first check all the opinion polls on the relevant subject and perhaps enquire into the records of parliament (including memoranda received in respect of laws passed – and even pending Bills which might eventually be discarded) to get a sense of the opinion of ‘key stakeholders’.

Should they find that the petition in question goes against the grain of popular opinion, they should not waste their time approaching the Constitutional court. Indeed, the Constitutional court’s position in this regard would suggest that the court is not very much different from the Executive or Parliament – as primarily a vehicle of the majoritarian will.

What then, one may ask, is the real purpose of the Constitutional court, if it will consistently defer to popular consensus rather than seriously consider those ideals – including human rights and individual liberty – reflected in the broad text of the Constitution?

Should not the Constitutional court (if not the entire Judiciary) be set aside, so that all struggles are directed to the two political branches of government? Another example might be useful here.

If one is to accept the statistics set out by the majority of the Constitutional court, one would note that adherents of African Traditional Religion (ATR) in Uganda are 56,332 persons out of 45,905,417 Ugandans in total – that is to say 0.1%. If one of the believers in ATR were minded to challenge the constitutionality of Uganda’s Witchcraft Act (a manifestly colonial relic), the thrust of the majority decision in Innocent Ngobi Ndiko would be: ‘do not bother’.

And yet, it is precisely for persons such as these – persons whose rights and freedoms might otherwise be trampled in a purely majoritarian system, that the Judicial branch exists in our system of government.

It is precisely for persons such as these that the test under Article 43 refers not only to a ‘democratic’ society but also a ‘free’ one. It is precisely for such otherwise excluded and marginalized persons that the broad language of the Bill of Rights (Chapter Four) of the Constitution uses the phrase ‘every person’ – rather than, for instance, ‘every majority group’.

The rights are preserved for the individual – even if that person is 0.0000001% of the population, rather than only majorities. Indeed, majorities (or other powerful interest groups) usually have no need for courts, since they can always channel their interests through the Executive or Legislature.

I can perhaps do no better, in this regard, than to cite that magisterial passage by Judge Arthur Chaskalson, the President of the Constitutional court of South Africa, who in the 1995 case of State v Makwanyane and Another remarked: ‘Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour.

If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution.

By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority.

The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.

Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

[At para 88] Is the essence of Justice Chaskalson’s exhortation not reflected in the Ugandan judicial oath, in terms of Article 149 and the Fourth Schedule to the Constitution, in which Justices commit themselves to ‘do[ing] right to all manner of people’ and to do this ‘without fear, or favour, affection or ill-will’?

The oath is not to do right to pleasant people, or popular people, or well-behaved people – it is to ‘all manner of people’. Presumably, this would include even those people who might have ideas which are extremely distasteful to several other Ugandans, or which might not have the support of majorities in a democratic process.

The Constitutional court has had a mixed record in this regard, appearing to live up to this ideal in cases such as Francis Tumwesige Ateenyi v Attorney General (2018), Soon Yeon Kong Kim & Kwanga Mao v. Attorney General (2007) and Adrian Jjuuko v Attorney General (2009); and faltering in others, such as Sharon Dimanche and Others v Attorney General (2004), Hon. Fox Odoi and Others v Attorney General (2023) and Susan Kigula and Others v Attorney General (2006) (Justice Egonda-Ntende again in dissent).

In Innocent Ngobi Ndiko, however, the Constitutional court has plumbed new depths, firmly adorning the costume of majoritarianism at the expense of constitutional principle with serious implications for pending and future litigation before the court.

Indeed, as noted above, it puts into question the very rationale of the court itself. In the column next week, we shall examine another terrifying aspect of the ghost of Innocent Ngobi Ndiko.

The writer is Senior Lecturer and Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and International Law.

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