The Constitutional Court has, in a majority decision, upheld Uganda’s criminal laws on abortion on grounds that they safeguard the right to life of unborn babies, protect family and cultural values, and promote responsible parenthood.
In a 3-2 ruling, the court dismissed two consolidated petitions that sought to invalidate Sections 130, 131 and 132 of the Penal Code Act, Cap.128.
The petitions were filed by the Human Rights Awareness and Promotion Forum (HRAPF) and the Centre for Health, Human Rights and Development (CEHURD) in 2017 and 2020 against the Attorney General.
The ruling arose from petitions arguing that the Penal Code provisions contravened Articles 8A, 21, 22(1), 24, 33, 44(a) and 287 of the Constitution.
The petitioners also claimed that the State’s failure to enact a law regulating the termination of pregnancy violated Articles 22(2) and 79(1)-(2).
Justices Hellen Obura, Moses Kazibwe-Kawumi and Dr Asa Mugenyi formed the majority, holding that the petitioners had not proved any inconsistency between the Penal Code and the Constitution.
In the lead judgment, the court ruled that the challenged provisions are consistent with Articles 22 and 126, and with Objectives XIX, XXIV and XXIX of the Constitution.
‘The impugned sections do not contravene the Constitution,’ the majority held. A substantial part of the ruling focused on the interpretation of Article 22(2), which states that no person has the right to terminate the life of an unborn child except as may be authorised by law.’
This clause presupposes a general prohibition on abortion unless Parliament enacts exceptions. The use of ‘may’ is permissive, not mandatory, and therefore does not compel Parliament to legislate on abortion,’ Justice Obura held.
Justice Mugenyi agreed, noting that the Constitution makes no express reference to a right to obtain an abortion.
‘The right to life of the unborn child under Article 22(1) cannot be watered down implicitly through other constitutional rights such as health, privacy or equality,’ he said.
Justice Kazibwe-Kawumi added that striking down abortion offences would conflict with the State’s obligation to protect the family under Objective XIX, which recognises the family as the natural and basic unit of society.
The majority further cited Objective XXIV, saying Ugandan society traditionally views conception and birth as significant events that require protection. Removing abortion offences, the court warned, would erode cultural values.
The justices also relied on Objective XXIX, which places duties on citizens to promote responsible parenthood. They reasoned that liberalising abortion beyond constitutional limits would contradict these duties.
In dissent, Justices Eva Luswata and Frederick Egonda-Ntende argued that maintaining criminalisation without a regulatory framework disproportionately harms women and girls.
Justice Luswata said the absence of a law governing termination of pregnancy negatively affects a wide range of constitutional rights.
She disagreed with the majority’s interpretation of Article 22(2), insisting that ‘may’ should impose a mandatory duty on Parliament to legislate on abortion.
The court dismissed both petitions and upheld the constitutionality of Sections 130, 131 and 132, ordering each party to bear its own costs on grounds that the issues raised were of significant public interest.