CONSTITUTIONAL COURT IN UGANDA DECLARES SECTION 8 OF THE PUBLIC ORDER MANAGEMENT ACT UNCONSTITUTIONAL
The Constitutional Court (Court) in Uganda, in a judgment delivered on 26 March 2020 (Human Rights Network and four others v Attorney General, Constitutional Petition no. 56 OF 2013), declared Section 8 of the Public Order Management Act (POMA), unconstitutional.
The POMA was enacted in 2013 to provide (a) a regulatory framework for public assemblies in Uganda and (b) for the duties and responsibilities of the police, organisers and participants in public assemblies. Section 8 was intended to keep peace, order, and tranquillity in the country, especially in urban areas, to ensure that public assemblies do not disrupt businesses, traders or commerce.
In Constitutional Petition No. 09 of 2005 Muwanga Kivumbi v Attorney General (earlier decision), the Court, in a judgement delivered on 27 May 2007, declared Section 32 (2) of the Police Act unconstitutional to the extent that it contravened Articles 20 (l) (2) and 29 (1) of the Constitution which guarantee the right to freedom of assembly.
The Court held that the impugned provision was prohibitive and not regulatory and therefore not acceptable and demonstrably justifiable in a free and democratic society. Section 32 (2) of the Police Act granted the Inspector General of Police, or such designated officer, powers to prohibit the convening of any assembly on reasonable grounds or belief that the assembly is likely to cause a breach of peace.
In contrast, section 8 of the POMA, grants the Inspector General of Police, or such designated officer, absolute discretion and broad authority to: stop or prevent the holding of a public meeting on reasonable grounds that it is likely to cause a breach of peace; use force and disperse public meetings; as well as impose criminal liability on organizers and participants in public meetings.
The Petitioners contended that the import of Section 8 of the POMA is the same as Section 32(2) of the Police Act which the Court nullified in the earlier decision. The Petitioners further contended that in passing the POMA, Parliament reversed the earlier decision of the Court and interfered with the rationale of the decision of the Court, thereby offending Article 92 of the Constitution which restricts parliament from enacting retrospective legislation.
The Respondent contended that the POMA does not violate any provision of the Constitution or fundamental rights.
The issue for determination was whether the enactment and ascent to Section 8 of the POMA is inconsistent with, and in contravention of, Article 92 of the Constitution of the Republic of Uganda.
The Court held that the action of the Respondent (legislature and executive) assenting to Section 8 of the POMA, which section is materially similar to Section 32 of the Police Act that was declared unconstitutional by the Court in the earlier decision, not only violates Article 92 of the Constitution which prohibits retrospective legislation, but also Article 29 of the Constitution which guarantees freedom of assembly and the right to demonstrate peacefully and unarmed. Accordingly, Section 8 of the POMA was annulled.
The Court found that the provisions of Section 8 of the POMA are in pari materia with the nullified Section 32(2) of the Police Act and that the impugned provision was calculated to whittle down the import of the earlier decision. In as much it is not in the exact wording, Section 8 of the POMA resulted in reincarnation of the nullified section.
The Court reasserted that Parliament cannot pass a decision that alters or waters down a court decision as this would have dire implications for the application of checks and balances; permitting Parliament to do so would be to acquiesce in undermining the authority of the Court.
The Court further noted that the variation of a Court decision by parliament is inconsistent with the notion of independence of the judiciary as provided under Article 128 of the Constitution.
Further, the Court expressed itself unequivocally that the police have absolutely no authority to stop the holding of public gatherings on grounds of alleged breach of peace if such gatherings are allowed to proceed, but rather its duty is to deploy, supervise and guard against someone bringing violence.
The Court took judicial notice of the fact that certain gatherings such as sports competitions and music shows inter alia occasionally cause breach of peace but law enforcers do not react by prohibiting such from taking place in future; the refusal to extend the same favour to gatherings of political nature is simply a reflection of unconstitutional animus.
The Court taking cognizance of the fact that the right to assembly is not absolute, held that Section 8 of the POMA does not pass the test of being a lawful restriction and that the limitations imposed thereunder are not demonstrably justifiable in a free and democratic society.
Lastly the Court highlighted the need for the legislature to put in place regulations to be followed by the police while implementing the POMA.
The judgement is critical in Uganda’s jurisprudence in so far as it reinforces the guaranteed constitutional right to assembly and buttresses the notion that the limitations imposed by Section 8 of the POMA are not demonstrably justifiable in a free and democratic society.
It underscores the importance of the doctrine of separation of powers, checks and balances, and more importantly it reinforces the independence of the judiciary which is critical in a growing democracy like Uganda.
The judgement which comes as a great relief to Ugandans is yet to be tested after the COVID-19 lockdown and when the ban against public gatherings is lifted.