Uganda Constitutional Appeal: Mabirizi Case

Why this appeal matters

Can a litigant challenge a national constitutional process before a regional court years after the key events, by describing those events as a continuing breach? And what kind of evidence is needed when the challenge asks the regional court to condemn the conduct of national institutions and the treatment of a domestic constitutional case? In Kiwanuka v Attorney General of the Republic of Uganda, the EACJ Appellate Division dismissed Male H. Mabirizi Kiwanuka’s appeal concerning Uganda’s 2018 constitutional amendments. The judgment reinforces the importance of Article 30(2)’s two-month filing period, pleading distinct acts clearly and supporting allegations about domestic judicial proceedings with convincing evidence.

This decision should be read with care. It does not mean that a national constitutional process can never be examined under the EAC Treaty, or that domestic apex courts are beyond regional scrutiny. It means that such scrutiny must be invoked in time and supported by a record that meets the demanding standard applied to allegations of serious Treaty violations.

The dispute and the appeal

Mabirizi challenged actions by Ugandan organs and institutions said to have culminated in the Constitutional Amendment Act 2018, including the amendment removing the presidential age limit. His regional reference alleged breaches of the Treaty principles of the rule of law, good governance and adherence to democracy under Articles 6(d) and 7(2). The First Instance Division dismissed Reference No. 6 of 2019 on 30 September 2020. It found, among other things, that important elements of the claim were out of time and that the evidence did not establish the alleged Treaty breaches.

Mabirizi appealed in Appeal No. 7 of 2020. He argued that the First Instance Division had made procedural errors, misunderstood jurisdiction and failed to deal properly with pleaded issues. The EACJ delivered the appellate judgment on 24 November 2025. The panel was Vice President Anita Mugeni and Justices of Appeal Kathurima M’Inoti and Omar Othman Makungu. The appeal was dismissed. The controlling citation is Kiwanuka v Attorney General of the Republic of Uganda (Appeal No. 7 of 2020) [2025] EACJ 18 (24 November 2025) (Appellate Division).

The legal questions

The appeal raised several connected questions. Did the First Instance Division wrongly treat the challenge as time-barred under Article 30(2)? Could earlier acts be pleaded as a continuing Treaty violation so that the limitation period remained open? Did the First Instance Division commit procedural unfairness or fail to determine issues that had been properly pleaded? And what evidence was required before the EACJ could find that Uganda’s institutions or courts had acted contrary to the Treaty?

The Treaty gives the EACJ jurisdiction to interpret and apply its provisions, including the principles in Articles 6(d) and 7(2). It does not make the Court a general appellate court for every national constitutional decision. A claimant must connect state conduct to a Treaty obligation, comply with the Treaty’s filing rules and prove the alleged breach. That framework is central to understanding both the appellant’s case and why the appeal failed.

What the Appellate Division held

The Appellate Division rejected the appeal and upheld the dismissal of the reference. It affirmed that the two-month limitation period in Article 30(2) runs from the specific act or omission complained of. A claimant cannot revive an expired claim simply by describing completed events as a continuing breach. Where a series of distinct institutional acts is challenged, each act must be assessed by reference to when it occurred and when the claimant knew or ought to have known of it.

The Court also rejected the procedural and bias complaints advanced on appeal. The overall result left the First Instance Division’s dismissal in place. The legal principle is that a Treaty challenge to national constitutional conduct must identify the impugned act with precision, be brought within Article 30(2)’s strict period, and be supported by evidence sufficient to establish the alleged Treaty breach. Allegations that a domestic apex court acted unlawfully require especially strong proof; the EACJ does not infer a regional violation merely because a litigant disagrees with the national judgment.

Why the decision matters for constitutional governance

The ruling matters because it draws a boundary between regional Treaty supervision and a further appeal on the merits of a domestic constitutional case. Article 6(d) and Article 7(2) are substantive commitments, not an automatic mechanism for reopening a national judgment. A regional claimant must show how the conduct of state organs violates the Community’s rule-of-law and governance principles, rather than simply restating domestic constitutional arguments in regional language.

The limitation point has practical force. Constitutional processes involve many stages: introduction of a bill, committee hearings, parliamentary debate, assent, litigation and later enforcement. A claimant must decide which event is the alleged Treaty breach and file within the applicable period. Waiting for the consequences of an earlier act, or for another court to decide a related question, may not restart the clock. The judgment makes careful chronology part of substantive advocacy, not a clerical detail.

Evidence and advocacy lessons

For claimants, the case shows why a regional constitutional reference needs a disciplined evidentiary file. The claimant should plead each relevant event and Treaty article, attach reliable records such as parliamentary materials and judgments, and explain how the evidence proves the alleged breach. If the complaint concerns an irregular legislative procedure, identify the specific procedural requirement and the record showing how it was violated. If the complaint concerns judicial conduct, distinguish an alleged Treaty breach from disagreement with the court’s interpretation or evaluation of evidence.

For respondents, the judgment illustrates the value of addressing threshold issues in a structured way: the date and character of each act, the limitation rule, the precise Treaty obligation invoked and whether the evidence reaches the required threshold. The judgment does not support speculation that either side prevailed because counsel omitted a particular point not discussed by the Court. Its practical lesson is instead to make limitation, admissibility, record completeness and proof explicit from the outset.

How the case fits earlier decisions

The appeal must be read against the First Instance Division’s 2020 ruling in Kiwanuka v Attorney General of the Republic of Uganda (Reference No. 6 of 2019) [2020] EACJ 18. That case dismissed the constitutional challenge on time-bar and insufficient proof grounds. The 2025 appellate judgment confirmed the importance of those limits rather than converting the EACJ into a court of general review over Uganda’s constitutional institutions.

The approach is consistent with the EACJ’s recognition that domestic courts and state organs remain subject to the Treaty. In Attorney General of Uganda v Media Legal Defence Initiative and 19 Others, Appeal No. 3 of 2016, the Court considered state responsibility through the lens of the Treaty’s principles. The two decisions can be reconciled: the EACJ may examine conduct that is properly pleaded as a Treaty breach, but the applicant must meet the Treaty’s temporal and evidentiary requirements. The 2025 appeal also sits alongside later EACJ cases involving Mabirizi, but those separate proceedings concern different references and cannot be treated as part of the holding in Appeal No. 7 of 2020.

Dissent and practical interpretation

The published record identifies the three-judge panel but does not report a separate dissent. The judgment should therefore be treated as the Court’s collective appellate disposition, not as a divided precedent. Its procedural message is still open to careful interpretation: strict limitation protects legal certainty, but it also places a real burden on claimants to identify the relevant act early and preserve the record. Courts applying the rule should distinguish a genuinely new act from the continuing effects of an old one, rather than treating all ongoing consequences as a fresh violation or, at the opposite extreme, collapsing distinct later acts into an earlier event.

For lawyers, civil society groups and public officials, the practical lesson is straightforward. A regional constitutional claim must be framed as a Treaty case, not merely a second attempt at domestic appeal. State the act, date it, identify the Treaty duty, explain the connection, bring the case within time and prove the allegation with primary evidence. Mabirizi confirms that these procedural requirements shape whether the Court can reach the substance at all.

A regional Treaty claim is not a second domestic appeal

The constitutional controversy had already produced litigation in Uganda, including the Supreme Court’s decision in Male Mabirizi and Others v Attorney General in Constitutional Appeal No. 2 of 2018, delivered in September 2019. The EACJ proceedings were distinct. The regional court’s task was to decide whether conduct attributable to Uganda breached the EAC Treaty, not to substitute its view for the domestic court’s interpretation of Uganda’s Constitution. A claimant can rely on the same events, but must identify the separate Treaty obligation and explain how those facts engage it.

This distinction protects both sides of the regional system. Domestic constitutional law remains for domestic courts in the first instance, while the EACJ can address a properly pleaded Treaty violation by a Partner State. The overlap may be substantial, particularly where allegations concern legislative process or judicial protection of constitutional rights. But overlap does not erase jurisdictional boundaries. A regional pleading should state what Treaty standard is invoked, what state act allegedly breached it, and why the claim is not simply an invitation to retry a domestic case.

Article 30(2): identify the act and the clock

Article 30(2) requires a reference to be filed within two months from the date a Treaty violation came to the knowledge of the complainant, or when it ought to have come to the complainant’s knowledge. The rule makes chronology a legal issue. In a constitutional process with many stages, counsel must identify whether the complaint concerns the introduction of a bill, a specific parliamentary procedure, passage, assent, a court decision or a later implementation act. Different acts may have different dates and legal effects; a pleading that bundles them together can obscure which deadline applies.

The continuing-breach argument requires similar precision. Continuing consequences do not necessarily mean the original act is repeated each day. Conversely, a genuinely new decision or omission may be independently reviewable if it creates a fresh Treaty complaint. A disciplined claim should distinguish a completed act, its continuing effects and any later act alleged to violate the Treaty. The appellate ruling rejects the use of a continuing label as a general device to revive a stale challenge, while leaving the legal analysis to the specific act and record before the Court.

The evidence needed for institutional allegations

Allegations about parliamentary procedure or judicial conduct should be grounded in primary records. Depending on the pleaded breach, those may include the bill and amendments, parliamentary order papers, committee reports, Hansard, official notices, pleadings, rulings and certified transcripts. A claimant should connect each document to a pleaded fact and explain what inference the Court is asked to draw. Public controversy, media reports or a party’s description of events may provide context, but they do not substitute for proof of the specific procedural act or Treaty consequence.

Where the challenge concerns the conduct of a national apex court, the EACJ must respect the seriousness of making a regional finding against judicial proceedings. The first-instance judgment applied a high evidential threshold to such allegations, and the appellate outcome left the dismissal intact. Lawyers should be careful to distinguish an asserted procedural irregularity from a disagreement with the result. The former needs proof of what happened and how it engaged the Treaty; the latter, standing alone, does not establish a regional breach.

Pleading fairness and procedural complaints

Mabirizi also raised complaints that the First Instance Division had failed to address pleaded issues or had relied on matters outside the case as framed. These grounds show why a party should keep a clear issues list throughout trial. The reference should identify the Treaty provisions and material acts; written submissions should map evidence to each pleaded issue; and closing submissions should state which findings are requested. If a court appears to decide an unpleaded issue, counsel should seek clarification or correction promptly and identify the prejudice, rather than waiting to characterize the problem for the first time on appeal.

An appeal should then distinguish between an issue that was actually pleaded and left unanswered, one that was argued but not separately discussed, and one that was never properly before the trial court. These categories carry different appellate consequences. A concise ground of appeal should identify the record location, the legal error and how it affected the result. The Appellate Division rejected the procedural complaints in this case, so the judgment is a reminder to preserve them with specificity and to show material prejudice, not a general license to reopen every disagreement about the trial court’s reasoning.

The domestic history and the regional question

The domestic Supreme Court’s 2019 decision is relevant background because it shows the constitutional litigation’s chronology and outcome, but it is not the same decision as the EACJ’s 2020 reference dismissal or 2025 appeal. The regional proceedings examined Treaty jurisdiction, limitation and evidence in their own procedural posture. A careful article or pleading should cite each case by court, case number and date to prevent readers from thinking the regional court affirmed or reversed the domestic judgment on the age-limit amendment itself.

The sequence also illustrates a practical problem for public-interest litigation: multiple forums may hear related cases on different schedules. A party may be tempted to wait for a domestic appeal to conclude before pursuing a regional claim. But the EAC Treaty’s limitation period operates independently, and the later result in one forum does not automatically reset the deadline in another. Counsel should assess regional timing at the outset, consider protective filing where procedurally proper, and explain any related proceedings without implying that one suspends the other.

Reading the decision without overstating it

The appeal was dismissed by a three-member Appellate Division panel, and the published judgment does not report a separate dissent. The absence of a dissent means the disposition is collective in the reported record; it does not turn every sentence of the first-instance reasoning into a universal rule. The strongest precedential propositions are those directly necessary to the appellate result: Article 30(2) is applied to the specific act complained of; a continuing-breach description does not automatically restart time; and procedural or evidentiary complaints require a proper record.

Future cases may present different facts, especially where a later state act is genuinely distinct or where the record contains direct evidence of a Treaty breach. The case should therefore be cited with a factual comparison, not as a categorical bar to all challenges concerning constitutional amendments. Equally, advocates should not cite it as proof that every alleged domestic judicial error can be corrected regionally. Its value lies in clarifying the route and discipline required for a regional Treaty case.

How to plead a continuing violation responsibly

A continuing-violation theory should identify continuing state conduct, not merely the ongoing public importance of a past constitutional amendment. The pleading should specify whether the State is taking a new decision, maintaining a legally operative condition, or leaving in place the consequences of a completed act. It should explain why that conduct is governed by the Treaty obligation invoked and when the claimant knew or should have known of it. Without those particulars, the label can obscure the limitation analysis.

This does not make every continuing situation legally identical. A later implementing act may be independent and raise its own timing question; it may instead be only an effect of the original act. The appellate judgment requires the analysis to be done act by act. Claimants should plead alternatives where the record supports them and avoid relying on a general assertion that the consequences remain felt.

A balanced view of strict time limits

Strict limitation rules serve legal certainty and prevent stale disputes from being litigated after evidence has become harder to test. They also require public-interest claimants to act quickly, sometimes while related domestic proceedings continue. That policy tension is real, but a court applying Article 30(2) must follow the Treaty text and the facts that trigger it. Counsel should treat the deadline as an urgent case-management issue, not assume that the constitutional importance of a claim excuses delay.

Respondents should raise timely objections with a transparent chronology and a clear explanation of the triggering act. Claimants should preserve evidence about knowledge, including receipt dates, participation in proceedings and public notices. Those details may determine when the period began. The case encourages both sides to address limitation through evidence and legal analysis rather than broad claims about when a national process was complete.

Sources Mentioned

East African Community Treaty, Articles 6(d), 7(2), 30(2) and 35A; Kiwanuka v Attorney General of the Republic of Uganda (Appeal No. 7 of 2020) [2025] EACJ 18 (24 November 2025) (Appellate Division); Kiwanuka v Attorney General of the Republic of Uganda (Reference No. 6 of 2019) [2020] EACJ 18 (30 September 2020) (First Instance Division); Attorney General of Uganda v Media Legal Defence Initiative and 19 Others (Appeal No. 3 of 2016) (EACJ Appellate Division).

Suggested Citation

Ronald Serwanga, ‘Uganda Constitutional Appeal: Mabirizi Case’ East Africa Legal Insight (8 October 2026).