(2018) 2 African Human Rights Yearbook 95 Highest Appellant Court’.16 In this way, the African Charter ‘remove[d] an apparently serious lacuna in our law’.17 Similarly extensive reference to the Charter was made by the Supreme Court in the 2002 case of Charles Onyango Obbo and Another v Attorney General,18 when it had to determine the scope of the right to freedom of expression under article 29 of the Constitution. Justice Mulenga, who wrote the lead judgment, referred to article 9 of the African Charter.19 In his concurring opinion, Justice Oder also referred to the Charter, alongside the International Covenant on Civil and Political Rights (ICCPR), to support his rejection of the Attorney General’s argument that Uganda’s ‘democracy’ had to be defined using a subjective test. According to Justice Oder, the meaning of ‘democracy’ as used in article 43 of the Uganda Constitution had to be understood based on an objective test, in part because Uganda was a party to a number of international treaties on fundamental and human rights, including the African Charter, which provided for ‘the universal application of those rights and freedoms and the principles of democracy’.20 Regard may also be had to the 2005 decision in Uganda Law Society v Attorney General.21 In this case, the petitioner argued that the action of security forces, who had re-arrested 22 accused persons granted bail by the High Court, was a violation of their right to liberty under article 23 of the Constitution as well as a violation of the constitutional guarantee of independence of the judiciary under article 128. The majority of the Constitutional Court upheld the petition,22 with one Justice of the Court specifically referring to the African Charter in this regard. In his concurring opinion, while considering the substance of article 23 of the Constitution, Justice Okello observed that ‘[t]o recognize the universality of human rights, it is important to note 16 17 18 19 20 21 22 At 48-49. At 49. As we have noted previously, however, both Justices Twinomujuni and Kavuma’s postulations regarding the status and effect of the African Charter are, with the greatest respect, erroneous. One the one hand, Justice Twinomujuni’s suggestion that the African Charter is ‘part and parcel’ of the Constitution is deeply problematic, in so far as it stipulates an effect of ratified treaties which is unknown to Ugandan law. On the other hand, Justice Kavuma’s critique of the position advanced by Justice Twinomujuni is itself partly flawed, to the extent that it gives the African Charter the status and effect of an Act of Parliament. Although this postulation is somewhat less perilous than Justice Twinomujuni’s position (which would give ratified treaties the status of constitutional provisions), it is itself an erroneous statement of the law, given the dualist stance of the Ugandan legal framework. For an extended discussion of these points, see Kabumba (n 4) 98-102. Constitutional Appeal 2 of 2002. At 7-8. At 30-31. Constitutional Petition 18 of 2005. Justices Mukasa-Kikonyogo, Okello, Engwau and Byamugisha agreed on this point, while Justice Kavuma dissented.