(2018) 2 African Human Rights Yearbook 99 illegal activities.44 In these circumstances ‘since the applicants in the exercise of their rights acted in a manner prohibited by law, it was not a valid exercise of these rights’ and ‘was also prejudicial to public interest’.45 The Judge then went ahead to emphasise that rights had to be exercised ‘within or according to the existing law’ and that the exercise of rights could ‘be restricted by law itself’46 citing article 9(2) of the African Charter (to the effect that individuals have the right to express and disseminate opinions only ‘within the law’).47 The Kasha decision is particularly important – and problematic – insofar as it demonstrates the potential for the African Charter to be used to restrict rather than realise human rights in national contexts. Indeed, by emphasising the Charter’s claw-back clauses, and its references to morality, the Judge imposed a lower standard for human rights adjudication than that actually provided under the Ugandan Constitution.48 In addition, in so doing, the Judge ignored a chain of jurisprudence of the African Commission, which has interpreted the Charter broadly and progressively, to overcome the restrictions presented under the Charter’s claw-back clauses.49 The Charter was also referred to, in passing, in two cases, in 2013 and 2014 respectively. In the 2013 case of Centre for Health, Human Rights and Development (CEHURD) and 2 Others v The Executive Director, Mulago National Referral Hospital and Another,50 (Mulago case) the High Court in dealing with a matter concerning the disappearance of a new-born baby, briefly mentioned articles 5, 16, 61 and 62 of the African Charter.51 Similarly, in the 2014 case of Prof J Oloka Onyango and 9 Others v Attorney General,52 the Constitutional Court mentioned the African Charter, as it enumerated the grounds upon which the petitioners had challenged the constitutionality of the Anti-Homosexuality Act.53 Ultimately, however, the Court invalidated the 2014 Act on a procedural ground, rather than based upon the substantive bases urged by the petitioners. Finally, the Charter seems to have been referenced in Patrick Kaumba Wiltshire v Ismail Dabule, a civil appeal from a High Court 44 45 46 47 48 49 50 51 52 53 At 10. As above. At 10-11. At 11. In particular, article 43 of the Constitution, but also articles 2, 20, 21, 32, 35 and 45, among others. See, for instance, Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998), para 65; Scanlen and Holderness v Zimbabwe (2009) AHRLR 289 (ACHPR 2009), para 112; Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) and Aboubacar v Ghana (2000) AHRLR 124 (ACHPR 1996). See, further, AO Enabulele ‘Incompatibility of national law with the African Charter on Human and Peoples’ Rights: does the African Court on Human and Peoples’ Rights have the final say?’ (2016) 16 African Human Rights Law Journal 1. High Court Civil Suit 212 of 2013 (decision of Lydia Mugambe J). At Paras 16, 24, 30, 32, 33, 66 and 67. Constitutional Petition 8 of 2014. At 5 of the decision.