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Question
Discuss the impact of the case of Dr. Sam Lyomoki and others v AG
Constitutional Petition No.8 of 2004 on the development of the law trade of
trade unions.

In this paper, we are going to mention the history of Trade Unions, give a brief
background and history of the Amalgamated Transport and General Workers
Union (ATGWU), its scope and jurisdiction, its aims, objectives and its
membership. We shall then proceed to the brief facts of the Dr. Sam Lyomoki
and others case, the issues raised in that case and how those issues were
resolved. We shall then focus on the impact of the case on the Labour Union
laws to date and sum it all up with a conclusion.
History of Trade Unions
Trade Unions were first governed by the Trade Union Ordinance, 1952. The Trade
Union Ordinance remained in force until it was repealed by the Trade Unions Act,
1965 which came into force on the 2 nd July 1965. The major purpose of the Act
was to amend and consolidate the law relating to the registration of trade
unions. The Act gave power to the Minister to appoint a Registrar and Assistant
registrars whose main duty was to keep and maintain a register of trade unions
in which particulars as may be prescribed by the minister were recorded and
such other books and documents as the minister may direct. Under the
provisions of the Act, a trade union would obtain registration after the
application had been signed by at least ten members of the union. A trade union
was as well deemed to be formed if it had thirty employees agreeing in writing
to form a trade union. This requirement could be considered waived in case of a
trade union where the employees were not more than thirty. It was of basis that
no trade union that was not registered under the act would be allowed to
operate. Under the Act, trade unions were free with prior consent of the
Registrar to amalgamate and form federations by whatever name called. The

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only requirement was that it had to be registered with the Registrar. Section 64
excluded soldiers, police men, and prison officers from membership of trade
unions. Under the Act, the Minister exercised purely regulatory powers through
the Registrar and did not supervise or control the operations of trade unions.
Within provisions of the Act, there was no national trade union center that
needed all other unions to affiliate to it.
The Binaisa Commission Report on Trade Unions of 1968 was published
immediately after the above Act. This brought an end to the arrangement of the
Trade Unions Act, 1965. This report brought into existence the Trade Unions act,
1970 which came into force on 31 st December 1970. The purpose of this act was
to establish and regulate integrated employees trade union to dissolve the
former Uganda Labour Congress and all other trade unions registered under the
Trade Unions Act 1965. The Act established a trade union that was considered
the only Trade Union in Uganda which was the Uganda Labour Congress. The
union had a number of branches country wide which were required to be
registered with the Registrar as long as they had at least 1000 employees. The
rest of the provisions in the 1965 Trade Unions Act were retained apart from the
requirement of having a minimum of 1000 members.
After the take-over of Government by Idd Amin Military regime, the Trade Unions
Act of 1970 was amended by the Trade Union Act, 1970 (Amendment) Decree,
1973 whose purpose was mainly to amend the Trade Unions Act, 1970 and reestablish the freedom of employment. This was to be done through forming
autonomous Trade Unions. The new decree abolished the name Uganda Labour
Congress and replaced it with National Organization of Trade Unions from here
on to be referred to as NOTU. The decree as well re-established the formation of
trade unions whose minimum membership had to be at least 1000. All the
unions were required to affiliate to NOTU and to be registered by the Registrar.
The decree enforced that an employer would not be bound to recognise or
negotiate with a union unless 51% of his employees were registered with the
union. NOTU was therefore conferred powers by the decree beyond mere
regulation of trade unions as had been the case hitherto. The decree provided

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NOTU with a number of purposes some of which included formulating policy

relating to proper management of trade unions and general welfare of
employees. Apart from the above changes, the rest of the 1970 Act was
maintained. The new section introduced was 16A which portrayed the provision
for formulation and registration of union branches of the very registered Trade
Unions. Amalgamation of the Unions could as well be done with the prior
consent of the Registrar.
In 1976, the trade unions decree 1976 was enacted whose purposes were
mainly to amend and consolidate the law establishing and regulating the
National Organisation of Trade Unions and providing for the formations by
employees of autonomous trade unions and branch unions of their own choice.
Apart from the consolidation of The Trade Unions Act, 1970 and The Trade Union
Act 1970 (Amendment Decree) 1973, this 1976 Decree did not really introduce
significant changes in the substance of the trade union law. The Trade Union
Decree 1976 is now reffered tp as the Trade Union Act, 1976 and is the one
whose impugned provisions were the subject of this petition.
For this research, one of the requirements was conducting an interview with any
trade union or labour union as referred to in the current law. The purpose of
which is to find out how labour unions operate and how the issues raised in the
aforementioned case affected the trade union law to date. We conducted an
interview with Amalgamated Transport and General Workers Union from here on
to be referred to as ATGWU. ATGWU is one of the labour unions in Uganda
among others. The interview was conducted out by the group members and a
one John Mark Mwanika who is the Project Co-ordinator of ATGWU who was of
great help in research for this course work paper.
Amalgamated Transport and General Workers union (ATGWU) is an autonomous
and democratic voluntary Organisation. It is formed, owned, funded and run by
workers in accordance with its constitution.
Background of the labour union:

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ATGWU is a dynamic labour union that traces its genetic roots from Uganda
Motor Drivers Association, formed in1938 by Ignatius K. Musaazi and James Kivu.
It is considered the first labour organization in the country. It was re-registered in
1974 as TU 7 under the Trade Union Act of 1970 as Amalgamated Transport and
General Workers Union after merging with other unions.

Scope and Jurisdiction:

ATGWU organises and represents workers in companies operating in the
industries of:

Road Transport Industry

Civil Aviation Industry

Logistics, Integrators and Delivery Service Industry

Oil Industry

Pharmaceuticals and Chemical Industries

Private Security Industry

Property Service Industry and

General Workers in Support Services.

Aims and Objectives:

ATGWU aims at effectively organising workers in the above industries into a
strong and well-informed labour union that is capable of facing the growing
challenges in the world of employment. Chief among the Unions objectives are:

Promoting and protecting workers human and trade union rights

Negotiating and maintaining sound terms and conditions of employment

for its members

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Establishing and maintaining mutual respect and trust between workers

and employers

Providing guidance and support to members on labour related matters

Developing institutional capacity through information, education and

training

Effective handling of members grievances and resolution of disputes at

workplaces

Networking with other labour unions and Organisations in the pursuance of

workers rights

Empowering members to actively participate in labour union activities.

Membership

Membership of the union is open to all workers within the mentioned

industries. An eligible worker can join ATGWU by signing a membership
declaration form.

Every member has the right to fully enjoy and benefit from the services of
the union without discrimination, and to participate fully in the business
and activities of the Union, including providing leadership at any level.

Every member is obliged to respect and uphold the union constitution and
to strengthen and protect the Union

ATGWU has a paid up membership of over 3200 members and a potential

membership of over 150,000 members.

Brief facts of the case

The Trade Union Act of 1976 establishes one organization called the National
Organisation of Trade Unions (NOTU). All Trade Unions in Uganda then were
compelled to affiliate with NOTU. The petitioners in this case being unhappy with
the manner NOTU was being managed decided to form another center called the

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Central Organisation of Free Trade Unions (Uganda) (COFTU). On seeking its

registration under the Act, the government declared that COFTU was unlawful
and therefore refused registration, hence this petition.
Issues raised in the case
The issues raised in this case were five but the major issues of contention were
four which were:
1. Whether sections 1(e), l(cc), 6(3) and 17(1)(e) of the Trade Union Act 1976

are inconsistent with and contravene articles 29(1)(e) and40(3)(a) and (b)
in as far as they limit members required for the formation of Employees
Associations, Trade Unions and set a minimum for recognition of Trade
Unions by the Employers.
2. Whether section 2(1) of the Act is inconsistent with and contradicts
articles 29(1e) and 40(3) (a) and (b) of the 1995 Constitution of the
Republic of Uganda.
3. Whether Section 28 of the Act is inconsistent with and contravenes articles
29(1e) and 40(3a) and (b) of the 1995 Constitution of the Republic of
Uganda.
4. Whether Section 70 of the Trade Union Act 1976 is inconsistent with and
contravenes article 20 of the 1995 Constitution of the Republic of Uganda.

How these issues were resolved

Issue 1: Whether sections 1(e), l (cc), 6(3) and 17(1) (e) of the Trade Union Act
are inconsistent with and contravene articles 29(1) (e) and 40 (3) (a) and (b) in
as far as they limit members required for the formation of Employees
Associations, Trade Unions and set a minimum for recognition of Trade Unions by
the Employers.
Section 1 (f) defines an employee association. In the Trade Union Act 1976 the
minimum number of members required to form an employee association is 30.
In his judgment, Twinomujuni J.A held that section 1(e) of the Act contravenes
freedom of association guaranteed under articles 29(1e) and 40(3) of the

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Constitution. It does so to the extent that it prescribes a minimum of 30

employees in order for the association to be formed. The judge was of the view
that even two people should be free to associate for purposes of protecting their
social, political, economic welfare and for other lawful purposes.
Section 1(cc) and 6(3) both hint on trade unions where section 1(cc) defines
what a trade union is while Section 6(3) stipulates that the minimum number of
members ought to be 1000 before it attains registration.
The opinion of the judge as regards this matter was that Parliament would make
the necessary adjustments if need be. He based his conclusion on the fact that
though the limitation appears, not to remove but to limit freedom of association,
the limitation is justifiable and the two sections do not contravene the
Constitution.
Section 17(1)(c) requires that for an employer to recognise a trade union 51% of
his employees should be registered members of that union. The judge agreed
that the provision places a limitation on the freedom of association guaranteed
by articles 29(1e) and 40(3) of the Constitution. He however was of the opinion
that it would be chaotic if an employer was faced with a situation where in one
business or industry, he had to negotiate with two or more trade unions
representing employees with common interests. The judge therefore found the
section justifiable.

Issue 2: Whether section 2(1) of the Act is inconsistent with and contrary to
articles 29(1e) and 40(3) (a) and (b) of the Constitution
Section 2(1) provided that the NOTU shall be the only principal organization of
employees in Uganda and all registered trade unions shall affiliate thereto. In as
much as the judge agreed that it would be a sound policy to encourage trade
unions to affiliate under one national center, it is unconstitutional to form one
organisation by legislation and to require all trade unions to affiliate to it. He
therefore held Section 2 of the Act inconsistent and contravened articles 29(1 e)
and 40(3a) and (b).

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Issue 3: Whether Section 28 of the Act is inconsistent with and contravene

articles 29(1e) and 40(3a) and (b) of the Constitution.
Section 28 provided that Any two or more registered trade unions may, with the
prior consent in writing of the registrar and subject to any conditions as may be
specified by the registrar, amalgamate together as one trade union. The
Judge ruled in favour of the limitation since did not think the provision intended
to limit the freedom of association or the right to join and form a trade union. He
was of the view that its intension is to introduce transparency.

Requiring

consent from the Registrar to amalgamate is therefore reasonable and does not
contravene articles 29(1e) and 40(3a) and (b) because it is justifiable under
article 43 of the Constitution.
Issue 4: Whether Section 70 of the Act in inconsistent with and contravene
article 20 of the Constitution.
Section 70 provides for the ineligibility for membership in Trade Unions and
inapplicability of certain law. It simply provided for those who are not eligible to
become members of trade unions. The petitioners had a problem with this
because they felt that this section empowered the minister to amend the second
schedule from time to time by statutory instrument. The main contention is that
freedoms of association guaranteed by articles 29(1 )(e) and 40(3)(a) and (b)
are so important that it would be contrary to article 20 to leave them at the
whims of one person, the Minister. The judge held that this does not in any way
infringe the Constitution because incase the Minister exceeds these limits, the
Statutory Instrument made by him is liable to be challenged in court.
In conclusion, Judge Twinomujuni stated that the Trade Unions Act, 1976, was
enacted long before promulgation of the 1995 Constitution making a number of
its provisions not to conform to the Supreme law of the land. Article 273(1) of
the Constitution requires that all such laws be brought into conformity with the
Constitution. He further stated that the effect of his judgment is not to condemn

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The Trade Union Act 1976 or NOTU out of existence. Its effect is only modify
those parts which have been declared inconsistent with and in contravention of
the Constitution.
From the discussion of the above discussion we have clearly portrayed
foundation of the formulation of the Labour Unions Act 2006 that replaced the
Trade Union Act 1976. The new law concerning labour unions is very important
for the unions since it is concerned with protecting the rights of workers in the
country. As seen from the above discussion Dr. Sam Lyomoki and others were
vigilant in ensuring that the law was in line with the Constitution of Uganda
(1995) and the International Labour Organisation Convention 87 (from here on
to be referred to as ILO).
The case clearly had an impact on developments of the law of trade unions both
directly and indirectly. Some of the changes that are visible to have been a
direct result of the case include the following. Removal of the 51% employees
requirement for a union to be recognized in the work place. Removal as well of
1000 members for labour union registration and permitting of the unionization of
all workers exceptions given on members of the Uganda Peoples Defence
Forces. These are clearly embedded in the Labour Unions Act 2006. Some of the
indirect impact that can be attributed to the case include the change of the
name trade union to labour union. We shall now move on to explain the effect of
the impacts as well as relate them to the repealed law were necessary.
Section 4 of the Labour Unions Act 1 stipulates that the employer ought not to
interfere with any employees right to association to join an organization. It
therefore upholds the ILO digest which states that workers and employers
shall have the right to establish and to join organizations of their own
choosing.2 Formerly, under the Trade Union Act3, labour Union leaders were
denied recognition by employers on the ground that they had to prove 51% of
the workers in the work place had consented to join a labour union. This made it
1 Acts Supplement No. 5 2006
2 ILO, Freedom of Association 2006
3 CAP 223 1976

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quite difficult since it involved going through a verification exercise by the labour
commissioner. This brought about fear among workers since the exercise could
expose them to employers. As a result employers could probably decide to
terminate their services on learning that they wanted to join a workers
organization. In our interview with John Mark Mwanika he supplemented about
this. He said once a worker is a fully paid member to a labour union then he or
she has the problems experienced at work handled by the union. He insisted
however that issues handled have to be directly in the sphere of the work place
and the worker ought not to have done something intentionally wrong and
expect help from the union. Such fear therefore workers experienced is therefore
dealt away with.