Abdu Abucar Hussein and 7 others v. Attorney General

Parties (including notable third parties)

Abdu Abucar Hussein (First Plaintiff); Abdullah Ahmed Shiek (Second Plaintiff); Yahaya Yusuf (Third Plaintiff); Hirsi Mohamed (Fourth Plaintiff); Abdinassir Hussein Shire (Fifth Plaintiff); Mohamed Abduwel Abdulla (Sixth Plaintiff); Ahmed Noor Osman (Seventh Plaintiff); Multiracial Community Uganda (MCU) Ltd (Eight Plaintiff); Attorney General of Uganda (Defendant)

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Summary of Facts

The Plaintiffs were born in Uganda to Ugandan parents of Somali ethnicity who had lived in Uganda all their lives and were entitled by law to all the benefits of Ugandan citizenship. However, the Defendant’s agencies (the Directorate of Immigration and Citizenship and the National Identification and Registration Authority) denied the recognition of the Plaintiffs’ citizenship by birth. They also denied their access to and renewal of travel documents such as passports and identification documents such as the Ugandan National Identity card.

The Defendant’s agencies did this by requiring verification of the Plaintiffs’ citizenship through evidence of certificate of registration, naturalization or proof of intermarriages with the indigenous community in Uganda, which the Plaintiffs could not provide. This happened because it was stated in a circular of the Deputy Passport Control Officer that all passport processing officers are directed to subject the citizenship of Ugandans of Somali ethnicity (among other ethnicities) to verification and directed that they could never be citizens by birth.

By a letter dated 23 June 2007, the Defendant had clarified the position in law that Ugandans of Somali ethnicity, as a non-indigenous person or community, were eligible for recognition as Ugandan citizens by birth. Despite this, the Defendant’s agencies continued to treat the Plaintiffs as ineligible for citizenship by birth.

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Legal Arguments

The parties filed a joint scheduling memorandum in which they proposed the following three questions for determination by this court.

1. Whether the Plaintiffs and the represented persons who were not members of the indigenous communities were eligible for citizenship by birth.
2. Whether the actions of the Defendant’s in denying the Plaintiffs citizenship were lawful.
3. What remedies were available to the parties.

Legal Arguments by the Plaintiffs

On Question 1

The Plaintiffs 1 - 7 submitted that they were eligible for citizenship by birth under Articles 9 and 10(b) of the Constitution of Uganda. They pointed out that this had earlier been confirmed by a legal opinion of the Defendant; however, the Defendant’s agencies unlawfully neglected or ignored the binding opinion of the Defendant and continued to deny citizenship of Ugandans of Somali ethnicity who were citizens by birth.

The Plaintiffs argued that the legal opinion of the Defendant was binding on the government.

The Plaintiffs also argued that their children who were born after 8 October 1995 were eligible for citizenship by birth under Article 10(b) of the Constitution. This reasoning was based on Articles 9 and 10(b) of the Constitution, which shows that any person born after 8 October 1995 is a citizen by birth if their Ugandan parents or grandparents acquired citizenship under the 1962 or 1967 Constitutions as citizens by birth.

The 8th Plaintiff submitted that citizenship by birth was a creature of the 1995 Constitution and the Uganda Citizen and Immigration Control Act, Cap.66, which provided that all persons born in Uganda to a parent or grandparent who was or is a member of the indigenous communities existing in Uganda as of 1 February 1926 is a citizen of Uganda.

On Question 2

The Plaintiffs contended that the actions of the Defendant’s agencies in denying the members of the Ugandan Somalis community who are citizens by birth, the issuance of travel and identification documents as well as renewal of the same were discriminatory, illegal, irregular and an affront of the rule of law.

The 8th Plaintiff cited Article 10 of the Constitution and Section 12 of the Uganda Citizenship and Immigration Control Act on who qualifies to a citizen and noted that race, colour, ethnicity or intermarriage were not among the legal requirements provided for under the law regarding proof of citizenship. The 8th plaintiff submitted that the actions of the officers of the Defendant in denying the members of the 8th Plaintiff citizenship and requiring documents as proof thereof were unlawful, arbitrary, callous, irregular and discriminatory under Article 21(1) of the Constitution.

Legal Arguments by the Defendent

On Question 1

The Defendant relied on Article 11 of the Constitution and Section 12 of the Citizenship and Immigration Control Act as the basis for citizenship by birth. The Defendant submitted that the Defendant’s opinion did not entitle all Plaintiffs to automatic citizenship by birth. He stated that the Plaintiffs relied on Article 9 of the Constitution, which conferred citizenship only on persons born in Uganda, or to Ugandan parents, before the 1995 Constitution came into force.

The Defendant submitted that the question to Court was whether the Plaintiffs and the multiracial community bringing the representative action fell within Article 9 of the Constitution.

The Defendant further contended that the Plaintiffs could, in any event, also apply for citizenship under registration under Article 12 of the Constitution and Section 14 of the Uganda Citizenship and Immigration Control Act.

The Defendant submitted that Article 10(b) of the Constitution did not confer Ugandan citizenship on the Somali ethnic community automatically, as a claimant still had to show that a parent or grandparent was a citizen by birth.

On Question 2

The Defendant contended that the Constitution clearly defined who was a citizen by birth, and that not every person of Somali ethnicity qualified. Persons who acquired citizenship after birth, by registration or naturalisation, could not transmit citizenship to their children. Citizenship by birth was limited to members of the indigenous communities listed in the third schedule to the Constitution, and neither the Somali community nor the multiracial community was included in that schedule. Accordingly, citizenship by birth was not automatic for either group.

Outcome

On Question 1

The Court found that the Constitution of the Republic of Uganda, 1995 as amended and the Uganda Citizenship and Immigration Control Act, Cap.66 are clear on who is a citizen and the nature of citizenship. The Court disagreed with the assessment made by the Deputy Passport Control Officer in his circular as the Constitution is very clear as to who a citizen by birth is.

The Court referred to Section 32(2) of the Uganda Citizenship and Immigration Control Act, which requires that a person applying for a national identity card to fill in a form and information required to be provided in that form includes place and date of birth, indigenous community to which the applicant belongs, the father’s name and place of birth, mother’s names and place of birth, two contemporary descendants among others. The Court believed that upon issuance of the identity cards, birth certificates and passports to the applicant, it would ordinarily appear that the officers in charge of issuing these documents verified all the information and arrived to a conclusion

that the person has provided the required information as to be granted the same and declared a citizen.

In determining citizenship status, Section 22 of the Uganda Citizenship and Immigration Control Act permits receipt as proof thereof, every document purporting to be a notice, certificate, order or declaration, or any entry in a register, or a subscription of an oath or allegiance or declaration or renunciation, given, granted or made under the provisions of Part III of the Act.  However, the Court held that proof of citizenship will not be limited to the documents listed in that provisions and that the Court could admit any other document with persuasive value on the question of citizenship.  If documents presented (such as passports, birth certificates or national identity card) were false they could also be rebutted; however, the Court held that the Defendant did not adduce any evidence claiming that the Plaintiffs acquired their documents fraudulently. The Court held that the Defendant had relied on the circular issued by the Deputy Passport Control Officer who seemed to have based his position on the Plaintiffs colour rather than the constitutional provisions thus being discriminatory and unfair to the Plaintiffs.

On Question 2

The Court found that the Defendant had failed to demonstrate that the Plaintiffs had acquired Ugandan citizenship through fraud or misrepresentation. The Plaintiffs were therefore entitled to be declared to be Ugandan citizens by birth.

The Defendant’s actions were in violation of the equal treatment and protection guarantee under Article 20 and 21 of the Constitution as the Plaintiffs were unfairly treated due to their colour and ethnicity as stated under the directive of the Deputy Passport Control Officer.

The Court also referred to Article 15 of the Universal Declaration of Human Rights which says ‘everyone has the right to a nationality’ and that ‘no one shall be arbitrarily deprived of his nationality’ and Article 1 of the 1961 Convention on the Reduction of Statelessness  which says that a ‘Contracting State shall grants its nationality to a person born in its territory who would otherwise by stateless. Such nationality shall be granted (a) at birth, by operation of law’.

The Court held that the actions of the Defendant’s officers were unlawful and in contravention of the articles of the Constitution and other laws and their actions may render the Plaintiffs and other persons in that category stateless due to denial of citizenship which is a violation of Uganda’s international obligations.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Constitution of Uganda	Article 9, 10(b), 20 and 21(1) of the 1995 Constitution; Article 7(1) of the 1962 Constitution
Domestic	Uganda Citizen and Immigration Control Act, Cap.66	s 12, s14, s22, s32(2)
International	Universal Declaration of Human Rights	Article 15
International	1961 Convention on the Reduction of Statelessness	Article 1

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.