The Constitutional Court has affirmed that the historical dispossession of a community from its land without compensation can ground a finding of marginalisation.

Case: Amos Isimbwa, Nyalwa Robert & Ndahura Patrick v Attorney General, Kasese District Local Government & Uganda Wildlife Authority, Constitutional Petition No. 48 of 2015 (Constitutional Court of Uganda).

Coram: Egonda Ntende, Obura, Luswata, Kazibwe Kawumi, Mugenyi, JJCC

Lead Judgment by: Justice Moses Kazibwe Kawumi

Subject: Marginalised Groups, Affirmative Action, Indigenous Land Rights – Article 32(1) of the Constitution

Facts

The Basongora community, a historically cattle-keeping people indigenous to the low-lying plains of present-day Kasese District in western Uganda, filed a Constitutional Petition against the Attorney General and the Kasese District Local Government, among others, seeking recognition of their status as a marginalised community under Article 32(1) of the Constitution and various ancillary reliefs related to their ancestral land.

The following material facts were either established by affidavit evidence or were not disputed by the Respondents that in 1925, the Colonial Government gazetted close to 98% of the land occupied by the Basongora as Lake George National Park. The Park was subsequently renamed Kazinga National Park in 1952, and later Queen Elizabeth National Park in 1954.

Between 1963 and 1975, post-colonial Governments gazetted the remaining 2% of the Basongora land for occupation by various institutions, namely the Mubuku Irrigation Scheme, Mubuku Prison Farm, the Forestry Department, and later the UPDF Production Farm.

None of the Respondents adduced evidence that the Colonial or successive Governments compensated the Basongora for the land alienated in the public interest. The alienation occurred progressively and in complete disregard of the common law doctrine of pre-existing rights or the doctrine of native/aboriginal title.

Many elderly Basongora died during the dispossession. Younger members were scattered to Ankole, Buganda, and Bunyoro, where they lost their traditional practices and were assimilated into new communities. The lack of compensation disabled the Basongora from acquiring alternative land, reducing them to wandering cattle keepers.

The 2024 National Housing and Population Census Report records the Basongora population at 13,831 persons, compared to 1,104,462 persons for the dominant Bakonzo tribe in Kasese District.

On 16 June 2006, the President of Uganda wrote to the Prime Minister, acknowledging the historical dispossession and directing that the Government compensate the Basongora with land and development.

Prior investigations and resettlement processes were initiated: a Ministerial Committee under Kisamba-Mugerwa reported in 1993; another Committee under Lawrence Etunu reported in 2006; and, in September 2007, the Basongora were partially re-settled on de-gazetted land at Mubuku Prison, Ibuga Refugee Camp, Hima Army Farm, Rwehingo, and Bukangara areas.

ISSUES FOR DETERMINATION

The central issues before the Constitutional Court were:

1. Whether the Petition discloses a cause of action.

2. Whether the actions of the 1st Respondent in evicting the Basongora, and the subsequent redistribution and re-allocation of their land to Government without compensation, contravene Articles 21, 22, 24, 25, and 26 of the Constitution.

3. Whether the actions of the 1st and 3rd Respondents in denying the Petitioners access to places of worship at Nyindozensi-Kikorongo, Kokisome, Nyomchokora, and Bunyompoka, as well as access to cultural sites, contravene Article 29 of the Constitution of the Republic of Uganda.

4. Whether the Respondents have discriminated against the Basongora community in governance affairs and overall development in favour of the majority Bakonzo community, contrary to Articles 21, 32, 36, and 38 of the Constitution of the Republic of Uganda.

5. Whether the use of the Rukonzo language as a medium of instruction in schools and in deliberations of local government councils is discriminatory.

6. Whether the actions of the officers of the 3rd Respondent in evicting the Petitioners from Queen Elizabeth National Park are unconstitutional.

7. Whether the Petitioners are entitled to the remedies prayed for.

LEGAL REPRESENTATION

At the hearing of the Petition on 13th November 2024;

1. The Petitioners were represented by Ms. Emma Nantume, holding brief for Mr. Edgar Tabaro.

2. The 1st Respondent (Attorney General) was represented by Mr. Jeffrey Atwine, Acting Commissioner for Civil Litigation in the Chambers of the Attorney General.

3. The 2nd Respondent (Kasese District Local Government) was represented by Mr. Samuel Kiriaghe.

4. The 3rd Respondent (Uganda Wildlife Authority) was represented by Mr. Chemonges Sabila.

The submissions earlier filed by the parties were, with leave of Court, adopted as their final arguments for the determination of the Petition.

SUBMISSIONS OF THE PARTIES

A. Petitioners’ Submissions

Counsel for the Petitioners submitted that the Basongora were a historically dispossessed indigenous community whose ancestral lowlands were appropriated, first by the Colonial Government and then by successive post-colonial Governments, without any compensation. They further submitted that the progressive alienation of Basongora land rendered the community landless, culturally disoriented, and economically marginalised, and that these circumstances qualified the Basongora as a marginalised group entitled to affirmative action measures under Article 32(1) of the Constitution.

They submitted that the dispossession was effected in complete disregard of the common law doctrine of pre-existing rights and the doctrine of native or aboriginal title, as recognised in Eddie Koiki Mabo and Others v Queensland (No. 2) [1992] HCA 23, and more recently affirmed in Commonwealth of Australia v Yunupingu [2025] HCA 6.

Counsel further submitted that the Petitioners were entitled to wide-ranging declaratory, restorative, and compensatory reliefs, including recognition of communal land ownership rights, resettlement on ancestral land, enforcement of prior government commitments, and, in the alternative, referral of the matter to the High Court for determination of appropriate redress.

1st Respondent’s Submissions (Attorney General)

Counsel for the 1st Respondent submitted that the question of whether a particular group qualifies as “marginalised” under Article 32(1) of the Constitution had already been conclusively determined by the Constitutional Court in United Organisation for the Batwa Development in Uganda & 11 Others v Attorney General, and that the doctrine of res judicata therefore applied to bar the present Petition.

Counsel further submitted that Objective 27 and Article 237(2)(b) of the Constitution instruct the Government to create and protect certain categories of land, including National Parks, from private ownership claims, and that this constitutional mandate justified the gazettement of Queen Elizabeth National Park.

It was additionally submitted that the Basongora, being neighbours to the National Park, benefit from the Uganda Wildlife Revenue Sharing Scheme and therefore could not properly be characterised as a marginalised community warranting affirmative action.

2nd Respondent’s Submissions (Kasese District Local Government)

The 2nd Respondent similarly submitted that the Petition did not raise any questions requiring constitutional interpretation, that it was devoid of merit, and that no remedies should be granted.

COURT’S FINDINGS

The Court found that it was undisputed that the Basongora were dispossessed of their land for the establishment of Queen Elizabeth National Park and subsequent government projects. It noted that the Respondents had failed to adduce evidence demonstrating that compensation was ever made.

The Court observed that the alienation of the Basongora’s land occurred progressively from the colonial period through successive governments “in complete disregard of the common law doctrine of pre-existing rights or the doctrine of native or aboriginal title.”

In discussing indigenous land rights, the Court cited Eddie Koiki Mabo v Queensland (No. 2), where it was stated that:

“The term ‘native title’ conveniently describes the interests and rights of indigenous inhabitants on land… possessed under traditional laws and customs.”

On the question of res judicata, the Court held that the matter was not barred, reasoning that the determination of marginalisation must be based on the specific facts of each community. It distinguished the Basongora from the Batwa, noting that their historical circumstances were materially different.

Interpreting Article 32(1), the Court emphasised that affirmative action is intended to address imbalances arising from history, tradition, or custom. It adopted the definition of affirmative action from Black’s Law Dictionary as measures designed “to eliminate existing and continuing discrimination… and prevent future discrimination.”

The Court found that the Basongora are numerically inferior in Kasese District, have been rendered landless through historical dispossession, and have suffered cultural and economic dislocation. It also relied on a Presidential directive acknowledging their historical oppression and recommending compensation and resettlement.

Accordingly, the Court held that the Basongora qualify as a marginalised group by reason of history within the meaning of Article 32(1) of the Constitution.

However, the Court declined to grant the majority of the reliefs sought. It held that the Petition primarily raised issues of enforcement of rights rather than constitutional interpretation, which falls outside its jurisdiction under Article 137.

The Court further held that it could not supervise or enforce previously agreed resettlement measures between the Government and the Basongora, noting that such matters should be resolved through the mechanisms agreed upon by the parties.

On Marginalisation under Article 32(1)

The central question for the Court was whether the Basongora constituted a 'marginalised' group on the basis of 'gender, age, disability or any other reason created by history, tradition or custom' within the meaning of Article 32(1) of the Constitution. The Court reproduced the relevant constitutional provision, which reads:

"32. Affirmative action in favour of marginalised groups. (1) Notwithstanding anything in this Constitution, the state shall take affirmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them."

The Court also referred to the definition in Black's Law Dictionary (8th Edition, Bryan A. Garner), which defines 'affirmative action' as:

"A set of actions designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination."

The Court found that the numerical disparity between the Basongora (13,831 persons) and the dominant Bakonzo tribe (1,104,462 persons), combined with the complete loss of their ancestral low lands suitable for cattle-keeping, rendered them effectively landless. The Court further noted the Presidential letter of 16 June 2006, in which the President of Uganda himself described the Basongora as 'an oppressed people all these centuries' and directed that the Government compensate them with land and development.

The Court treated the Presidential letter as corroborating the 1st Petitioner's affidavit evidence and as independently confirming the historical marginalisation of the community. On that basis, the Court found and declared that the Basongora are a marginalised group by reason of history, within the meaning of Article 32(1) of the Constitution, and thus merit affirmative action measures.

On the Other Reliefs Sought

The Court held that the Petition failed on all issues other than the marginalisation declaration, on two grounds: first, the remaining reliefs did not raise matters requiring constitutional interpretation and therefore fell outside the Court's jurisdiction; and secondly, issues relating to the enforcement of human rights fell outside the jurisdiction of the Constitutional Court.

As regards the alternative prayer for referral to the High Court, the Court held that it could not be granted because credible and uncontradicted evidence showed that resettlement plans had already been agreed between the Basongora Community and the Central Government (with partial implementation effected in September 2007), and that any failure to implement those measures should be resolved through the avenues agreed by the same parties. The Court observed that neither it nor the High Court was positioned to investigate, assess, and supervise, through a structural interdict, remedial measures that the parties themselves had already settled.

HOLDING

The Petition succeeded only to the extent that the Court declared the Basongora a marginalised group under Article 32(1) of the Constitution.

All other prayers, including those seeking resettlement, compensation, structural interdicts, and referral to the High Court, were dismissed. Each party was ordered to bear its own costs.

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KEY TAKEAWAYS

1. MARGINALISATION IS GROUP-SPECIFIC

   The Court confirmed that the determination of whether a group is “marginalised” under Article 32(1) must be assessed on the factual circumstances of each individual group. A prior ruling on the Batwa community’s marginalised status does not constitute res judicata in respect of the Basongora, or any other distinct community.

   
   

2. HISTORY AS A BASIS FOR MARGINALISATION

   The Constitution’s open-ended phrase “any other reason created by history, tradition or custom” is sufficiently broad to capture communities dispossessed of their ancestral land through colonial and post-colonial government action. Historical alienation of land without compensation is a cognisable basis for marginalisation.

   
   

3. NATIVE TITLE DOCTRINE ACKNOWLEDGED

   The Court expressly acknowledged the common law doctrine of native/aboriginal title and its relevance to Uganda’s legal order. Land alienation that ignores pre-existing indigenous land rights may be constitutionally questionable. Practitioners should monitor how Ugandan courts develop this doctrine.

   
   

4. PRESIDENTIAL COMMUNICATIONS AS EVIDENCE

   The President’s letter of 16 June 2006, acknowledging historical injustice and directing compensation, was admitted and relied upon as corroborating evidence of marginalisation. Executive communications and official correspondence may carry evidential weight in constitutional proceedings.

   
   

5. JURISDICTIONAL LIMITS OF THE CONSTITUTIONAL COURT

   While the Constitutional Court may grant declaratory relief on questions of constitutional interpretation, it does not have jurisdiction to enforce human rights, award damages, or issue structural interdicts supervising the implementation of agreed settlement plans.

   
   

6. STRUCTURAL INTERDICTS AND PRE-EXISTING AGREEMENTS

   Where parties have already negotiated and partially implemented a remedial framework, courts are reluctant to layer additional supervision through a structural interdict. The existence of an agreed resettlement plan effectively foreclosed supervisory judicial intervention in this case.

   
   

7. WILDLIFE REVENUE SHARING IS NOT DETERMINATIVE

   The argument that a community’s participation in a revenue-sharing scheme precludes it from being categorised as marginalised was implicitly rejected. Economic benefits from proximity to a national park do not extinguish historical claims of dispossession.