Brief and Mooting Problem for CLE 2 January 2011

Here is the Brief and Mooting Problem for CLE 2 January 2011.

It is being posted in its current form in order to give students an early start on the problem. It is in draft form and is subject to further revision:


2012 Clinical Moot Problem

This Moot Problem takes place in January 2016 on the eve of elections in Uganda.

This Moot Problem concerns a Constitutional challenge to the Fair and Safe Election Act.

The Fair and Safe Election Act is a controversial piece of legislation that was passed for the purported purpose of ensure public safety and public order during the 2016 Election Period. A full version of the Act is included as Appendix A to this Moot Problem. The Fair and Safe Election Act has been passed by Parliament and formally assented to by the President. However, the Fair and Safe Election Act has yet to be implemented as it is only effective during the upcoming Ugandan Election Period which is defined in the Act as 1 February, 2016 through 1 March, 2016.

Procedural Posture

The Moot case is a Constitutional Petition filed in the Constitutional Court of Uganda.
The Petition has been properly brought under Article 137(3) of the Constitution of the Republic of Uganda. There are no factual issues in dispute. This instant matter solely concerns the constitutionality of the provisions of the Fair and Safe Election Act.

The Parties

The original Petitioner in this case is Fourth Estate Uganda. Fourth Estate Uganda is a properly registered Non-Government Organisation in Uganda dedicated to freedom of the press and freedom of expression. Fourth Estate Uganda has been joined by several other petitioners in this case including newspapers, television stations, radio stations, newspaper editors, television news anchors and radio personalities. The Respondent in this case is the State of Uganda represented by the Office of the Attorney General.

Issues Presented

The Constitutional Court of Uganda reviewed the pleadings in the case and conducted a pre-trial conference. At the pre-trial the Constitutional Court advised the parties to address four issues by written brief and later by oral argument. The oral argument will take place on the morning of 31 January, 2016. The issues that the Constitutional Court seeks briefing and oral argument on are as follows:

1. Whether or not the political question doctrine prevents this Court from subjecting the Fair and Safe Election Act to judicial review.
2. Whether or not the Fair and Safe Election violates any Constitutional protection afforded to freedom of speech, freedom of expression or freedom of the press.
3. Whether or not the Fair and Safe Election Act violates the any Constitutional right to a hearing, the right to appeal or the right to habeas corpus.
4. Whether or not the Fair and Safe Election Act violates any Constitutional right attributable to a corporate entity or the owners of a corporate entity.

The Petitioners may raise other arguments against the Protect Uganda Act as long as all such arguments are the proper subject matter for a petition brought under Article 137(3) of the Uganda Constitution.

The Respondent may address additional arguments that the Respondent believes that a zealous and thorough petitioner would bring in a petition brought under Article 137(3) of the Uganda Constitution.

Exhibit A:
THE FAIR AND SAFE ELECTION ACT, 2016

Having noted a substantial risk of violence and unrest during elections on the African Continent, and cognizant of an increasing tendency among members of the media to incite tension and through the publication of harmful and reckless reports, we the members of Parliament enact The Safe and Fair Election Act. This Act is intended to ensure public safety and public order during the 2016 Election Period.


DATE OF ASSENT: 4 January, 2016

Date of Commencement: 1 February, 2016

BE IT ENACTED by Parliament as follows:

1. Short Title
This Act may be cited at the Safe Election Act, 2016 and shall be deemed to come into force on the 1st day of February, 2016 and will conclude to be in force at the conclusion of the 2016 Election Period.

2. This Act Expressly Concerns a Political Question
The purpose of this act is to ensure public safety and public order during the 2016 Election Period. In that sense this act concerns a purely political question that removes it from the purview of judicial review.

3. The Election Period
The 2016 Election Period begins on 1 February, 2016 and concludes on 1 March, 2016.

4. Designation Power of the Electoral Commission
The Electoral Commission is empowered to designate individuals and corporate entities as detrimental to the election process any time during the 2016 Election Period.

5. Grounds of Designation as Detrimental to the Electoral Process
The Electoral Commission may only designate individuals or corporate entities as detrimental to the electoral process under the following circumstances:

a. The Electoral Commission finds that the individual or corporate entity has issued a report or published a statement that has the potential to impact public safety or public order in a negative manner during the Election Period.

b. The Electoral Commission finds that an individual or corporate entity issues a false report or false statement that is likely to impact public perceptions that are relevant to the 2016 Election.

6. The Right to a Hearing
If the Electoral Commission makes a preliminary determination that an individual or corporate entity is detrimental to the electoral process, the subject individual or corporate entity will receive notice of hearing to be conducted before an appointed representative of the Electoral Service Commission. At this hearing the subject individual or corporate entity shall have the burden to affirmatively refute the initial findings of the Electoral Commission’s preliminary determination. The subject individual or corporate entity has the right to appear at this hearing. In most instances the hearing must take place within 10 days of a preliminary determination by the Election Commission. However, in the case of internment of an individual the hearing shall take place within 48 hours of internment.

7. Prohibition Against Public Comment During Pendency of Hearing
Once the Electoral Commission makes a preliminary determination that a person or corporate entity is detrimental to the election process, the subject individual or corporate entity is prohibited from making any public statement, report or comment until the conclusion of the hearing provided for under Section 6 of this Act. This prohibition shall continue until the conclusion of the Election Period unless the designated person or corporate entity successfully refutes the preliminary determination at the hearing or at any subsequent appeal.

8. Preventative Accommodation and Preventative Management
If the representative of the Electoral Commission makes a finding that an individual or corporate entity has in fact participated in conduct that is detrimental to the election process the following actions will be taken:

a. If the improper act was committed by an individual that individual will be interned at
the Speke Resort until the conclusion of the Election Period. During internment that individual will be barred from communicating with anyone other than the staff of the Speke resort, legal counsel and immediate family members.

b. If the improper act was committed by a corporate entity all physical property of that corporate entity or any subsidiary or sister entity will be seized by the Uganda Election Commission for the duration of the Election Period.

9. Right to File for Reconsideration
Any party that is aggrieved by a decision by the Electoral Commission has the right to file for reconsideration. The Electoral Commission has up to twenty-five days to render a decision from the time a motion for reconsideration is filed. The right to file a motion for reconsideration is deemed to be a remedy that must be exhausted prior to appealing any decision by the Electoral Commission. All parties that disagree with any determination by the Electoral Commission have the right to appeal that decision to the High Court after exhausting the all other remedies available before the Electoral Commission.

10. Appeals of the Designations of the Electoral Commission
All parties that object to the final determination of the Electoral Commission have the right to appeal that decision to the High Court.

11. Right to Habeas Corpus Will Not Apply
Designated agitators and instigators will be interned and not be incarcerated. Therefore, such individuals have no right to habeas corpus. In addition, to the extent that habeas corpus would apply it is hereby suspended through this Act of Parliament and assent of the President during the Election Period in order to insure public safety and public order.