Yasin Omar v. Attorney General

Parties (including notable third parties)

Yasin Omar (Complainant); Attorney General of the Republic of Uganda (Respondent)

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Summary of Facts

This case concerned a complaint that officials from the Ministry of Internal Affairs of Uganda discriminated against individuals of multi-racial descent (referred to in the judgment as ‘half castes’) in the processing of passports and National Identity Cards.

The case was brought by Yasin Omar on behalf of his children and also in a representative capacity on behalf of other multi-racial individuals in Uganda. The Complainant was the acting chairperson of an NGO called ‘the Multi-racial Community of Uganda’.

The Complainant testified that both he and his wife were ‘half castes’ and that, in around 2015, his two children’s passport applications were rejected on the grounds that they were not Ugandans despite the Ugandan Passports of both parents being attached. The Complainant further testified that his children’s applications were only accepted after he sought the intervention of the Minister of Internal Affairs.

The Complainant also relied on testimony from other multi-racial victims of discrimination, including:

1. Arafat Hamid Abdullah, whose application for a National Identity Card was rejected on the basis that his documents were purportedly forged;
2. Faiza Sultan Thabit, whose National Identity Card application was rejected on the basis that she was not Ugandan because of her skin colour;
3. Pehlwal Ilamdin, whose applications for National Identity Cards and Passports for his three daughters were rejected despite clear proof of their Ugandan citizenship by birth. The officer at the Ministry of Internal Affairs told Mr Pehlwal to bring one of his daughters for him to marry before he would grant citizenship; and
4. Swalha Sonia Nasher, whose application for a National Identity Card was rejected on the basis that her nationality was questionable. The officer in charge solicited money from Ms Swalha to enable her to obtain a National Identity Card.

Most of the Complainant’s witnesses testified that they were Ugandans by birth and adduced evidence of this, including birth certificates.

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Legal Arguments

Legal Arguments by the Complainant

The complaint was heard and determined ex parte because the Respondent did not file a defence despite being duly served with a copy of the complaint.

The Complainant argued that the officials from the Ministry of Internal Affairs breached Article 21of the 1995 Constitution of the Republic of Uganda which prohibits discrimination, including on racial and ethnic grounds; and that their conduct amounted to a violation of the victims’ right to citizenship.

The Complainant further argued that multi-racial communities should be accorded affirmative action to access political appointments pursuant to Article 32 of the 1995 Constitution, which provides that the State shall take affirmative action in favour of historically marginalised groups.

Outcome

The Commission found that the officials from the Ministry of Internal Affairs had breached Article 21 of the 1995 Constitution by rejecting the witnesses’ applications for passports and/or Nationality Identity Cards because of their race and/or characteristics associated with their skin colour. The Commission determined that this was direct discrimination and that evidence of discrimination against multi-racial individuals to be ‘overwhelming’ and ‘alarming’ (page 9).

The Commission further found that the rejection of the witness’s applications for passports on the unjustified grounds of their skin colour amounted to a violation of their rights as citizens of Uganda. Specifically, it breached section 39 of the Uganda Citizenship and the Immigration Control Act which entitles every Ugandan citizen to a passport, and Article 20(2) of the 1995 Constitution which requires all government agencies to respect, uphold and promote rights and freedoms for all individuals.

The Commission noted that multi-racial individuals in Uganda are a product of colonial history and affirmative action is necessary for redressing imbalances which exist for this marginalised group of people. The Commission noted that although Article 36 of the 1995 Constitution emphasises the rights of minorities to participate in national decision making, affirmative action for political appointments is the Executive prerogative of the President and the Commission declined to make the orders sought.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Universal Declaration of Human Rights 1948	Article 2(1)
International	International Convention on the Elimination of All Forms of Racial Discrimination	Articles 2-7
Domestic	Ugandan Constitution 1995	Articles 12, 20, 21(1),(2), 32, 36, Chapter 3
Domestic	Ugandan Citizenship and Control Act	Section 39
Domestic	Equal Opportunities Commission Regulations	Sections 1 and 14; Regs 4(1) and (2)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Joe Oloka-Onyango ‘Exploring the Multiple Paradoxes and Challenges of Uganda’s Refugee Law, Policies and Practice’ (2022) 9 Transnational Human Rights Review 1.

• The author briefly cites Yasin Omar v Attorney General as evidence of clear discrimination against mixed-nationality individuals, notwithstanding that the 1995 Constitution allows both Ugandan women and men to confer citizenship on their children.