Constitutional rights, horizontality, and the Ugandan Constitution: An example of emerging norms and practices in Africa

摘要

The traditional view that only states have human rights obligations and, relatedly, that a constitution operates only vertically has been changing. In Uganda, as is the case in several other African countries, the Constitution expressly states that the rights and freedoms it recognizes must be respected, upheld, and promoted by all persons and organs of state, but the practical implications of this provision remain unexplored. So far, Ugandan courts have shown willingness to hold non-state actors directly responsible for violations of constitutional rights, although they are yet to use the language of horizontality expressly. Furthermore, Ugandan courts do not seem particularly troubled by the principle of subsidiarity which holds that statutory and common law remedies must be pursued first before recourse may be had to direct constitutional remedies. This has made it possible for litigants to bring direct constitutional suits against state and non-state actors in one action or to plead both constitutional provisions and statutory provisions, or direct and indirect horizontality, to enforce constitutional rights. This is a significant departure from the existing practice of constitutional horizontality in comparative constitutional law. In other respects, however, such as recognizing the duty to protect and applying the principle of third-party effect of constitutional rights, Uganda's constitutional jurisprudence remains underdeveloped.