LAW OCRACY ELOPMENT LAW DEMOCRACY & DEVELOPMENT

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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

LAW DEMOCRACY

& DEVELOPMENT

VOLUME 16 (2012) DOI: http://dx.doi.org/10.4314/ldd.v16i1.11

ISSN: 2077-4907

http://dx.doi.org/10.4314/ldd.v16i1.2

LAW, DEMOCRACY & DEVELOPMENT / VOL 16 (2012)

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jurisdictions, it has become engrained in the domestic procedural law and guidelines on

its applications are clearly provided. Yet in others it remains ambiguous with no rules

or guidelines governing its application. In such jurisdictions, the role of amicus in legal

proceedings is as ambiguous as its controversial origins. It is for this reason that this

paper attempts to compare the approaches adopted by South Africa and Uganda in the

application and use of the amicus curiae procedure with a view to determining what

Uganda can learn from the South African approach.

The focus of the discussion in this paper is confined to human rights litigation. This

is because of the universality of human rights, a principle which is founded on the

notion that all human rights apply uniformly and with equal force throughout the world.

Indeed this is the other reason for the comparison between South Africa and Uganda.

Moreover, despite the wide disparity in the levels of democracy and human rights

protection, constitutionally speaking, Uganda and South Africa have a lot in common

having both entered a new constitutional era at the same time in the early 1990s.

Additionally, the South Africa judiciary has made tremendous advances in constitutional

adjudication and its jurisprudence is increasingly informing judicial discourses in many

parts of the world. The South African approach therefore has a number of lessons to

offer to other jurisdictions that are struggling to build their constitutional

jurisprudence.

The article begins with a brief exploration of the meaning, origins and development

of the concept of amicus curiae before discussing its application in South Africa and

Uganda. The main argument is that the South African approach lends itself to a more

useful role of amicus curiae than the Ugandan approach and hence serves the protection

of human rights better. It is concluded that disparities in the mechanisms and levels of

human rights protection notwithstanding, Uganda can learn from the approach adopted

by South Africa in the application of the practice of amicus curiae and the role this can

play in human rights litigation.

2 THE MEANING, ORIGINS AND DEVELOPMENT OF AMICUS CURIAE

The English translation of the Latin term amicus curiae as “friend of the court” tends to

confuse the meaning of the concept instead of illuminating or clarifying it. Indeed the

literal translation of the term amicus curiae as a “friend” of the court has been described

by some commentators as being “deceptively simple”.2 As a result of the uncertainty,

numerous definitions have been ascribed to the term leading to even more confusion.

Part of this uncertainty is the result of the varied and disparate ways through which the

concept has been developed and applied in different legal systems and jurisdictions

over the years as mentioned earlier.

In order to understand the meaning of amicus curiae, it may be worthwhile

referring to some legal definitions. Black’s Law Dictionary defines amicus curiae as “a

person who is not a party to a lawsuit but who petitions the court or is requested by the

2 See Bellhouse J and Lavers A “The Modern Amicus Curiae: A Role in Arbitration?” (2004) 23 Civil Justice

Quarterly 187.

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court to file a brief in the action because that person has a strong interest in the subject

matter.”3 And the Meriam-Webster Dictionary defines it as “… a professional person or

organization…that is permitted by the court to advise it in respect to some matter of law

that directly affects the case in question.”4

Although there is far from universal agreement on the exact origin of the amicus

curiae, the commonly held view is that it has its origins in Roman law.5 This is because

of the ancient Roman practice which allowed courts to appoint third parties as

independent advisers who could provide legal or factual information on unfamiliar

issues.6 The practice is believed to have been introduced in the Common Law in the

14th century.7 It is not clear exactly when the English courts adopted the concept but,

according to Sammuel Krislov, the participation of amicus curiae was widely reported in

English law reports in the 17th and 18th centuries.8

For a number of reasons, not least of which was the complex American federal

system, the courts in the US were initially rather reluctant to allow the participation of

amicus curiae in litigation. In the 1806 case of Strawbridge v Curtiss9 for example, the

Supreme Court strictly scrutinized the right of “parties in interest” to appear before

federal courts and held against it. It was not until 1823 that US federal courts opened

the doors of amicus curiae as first reported in the case of Greed v Biddle.10 Since then

the practice has developed and spread beyond the United Kingdom and the United

States to other jurisdictions and legal systems across the world.

The initial reluctance of the US courts to embrace the institution of amicus curiae

did not last for very long. Indeed over the last century, the institution of amicus curiae in

the US has been totally transformed to the extent that about 85 per cent of cases argued

before the US Supreme Court by the end of the 20th century involved at least one written

amicus brief.11 It is also estimated that between the 1946 and 2001 Supreme Court

terms, 15214 amicus briefs were filed in 3865 case.12 Justice O’Connor of the US

Supreme Court has justified the amicus procedure on ground that “[t]he 'friends' who

appear today usually file briefs calling our attention to points of law, policy

considerations, or other points of view that the parties themselves have not discussed”.

3 See Garner B, Black’s Law Dictionary 7th Edition (1999) 83

4 See Meriam-Webster Dictionary at http://www.merriam-webster.com/dictionary/amicus%20curiae.

5 See Mohan SC “The Amicus Curiae: Friends no More?” (2010) Singapore Journal of Legal Studies 355.

6 See Gao HS “Amicus Curiae in WTO Dispute Settlement: Theory and Practice” (2006) 1 China Rights Forum 51.

7 Ibid.

8 See Krislov S, “The Amicus Curiae Brief: From Friendship to Advocacy” (1963) 72 Yale Law Journal 694-695.

9 7 U.S. (3 Cranch.) 267 (1806).

10 21 U.S. 1 (1823). See Gao (note 6 above) 51.

11 See Kearney J & Merril T “The influence of Amicus Curiae Briefs on the Supreme Court” (2000) 148 University of Pennsylvania Law Review 743.

12 See Collins P Friends of the Supreme Court: Interest Groups and Judicial Decision Making (2008) 48.

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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.

19 Ibid. at 541.

http://www.henryclay.org/henry-clay/attorney/

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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)

at the University of the Witwatersrand.

45 2009 (11) BCLR 1148 (CC); 2009 (5) SA 572 (CC).

46 2008 3 SA 232 CC.

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.


Page | 211

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>

82 See <http://www.huripec.mak.ac.ug>

http://www.communitylawcentre.org.za/


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6 CONCLUSION

Human rights litigation is one of the fastest growing areas of legal and judicial practice.

Many human rights activists and advocates are embracing litigation as a tool for the

promotion and protection of human rights. In this process, courts have been pushed to

open up and abandon their conservative positions, sometimes forcing judges to adopt

activist stances hitherto unknown in judicial practice. Although the amicus curiae

procedure is known in common law, it has not been a well-developed procedure in

some jurisdictions. However, with increasing pressure on the courts to be more

accessible, many jurisdictions are responding by entrenching the amicus curiae

procedure as part of defined procedural law. This impetus has been pushed by public

interest litigants eager to ensure that the voices of the vulnerable are heard in judicial

processes which have traditionally been elitist. Nonetheless, some jurisdictions are not

moving as fast as others in this regard.

In Africa, South Africa has taken the lead in giving meaning to the amicus curiae

procedure. Besides entrenching the procedure in the rules of courts, the courts have

been receptive and appreciated the role that amicus curiae can play in growing a

country’s judicial jurisprudence. It is in this regard that South Africa offers lessons for

other African jurisdictions including Uganda. Although the amicus curiae procedure is

known in Ugandan judicial practice, it has been used in very limited cases, mainly

because principles governing this procedure are not well developed. Outside the courts,

the procedure is yet to be embraced by human rights activists and legal practitioners.

To develop the procedure, Uganda needs to entrench it as part of its procedural law.

Judges, human rights activists and legal practitioners need to appreciate the role of the

procedure as a tool for giving the poor and vulnerable a voice. If this has successfully

been done in South Africa, it should be possible in Uganda.

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