Case Summary and Outcome

The Ugandan Constitutional Court declared a provision of the Public Order Management Act (POMA) unconstitutional as it empowered police officers to prevent and disperse public gatherings. The Act – enacted in 2013 after the Constitutional Court had struck down a similar provision in 2005 – was challenged by a group of non-governmental organizations, a Member of Parliament and a prominent church leader. While recognizing that protecting public order is necessary and that laws which regulate public order are justifiable in democracies, the Court stressed that this regulation cannot allow for the suppression of public gatherings or require prior permission for a public gathering. The Court found that although the wording of section 8 of POMA and the earlier provision differed, the “subject, matter, purpose and effect” were the same, and hence it was prohibitory, rather than regulatory in nature. The Court was critical of Parliament’s attempt to subvert its earlier decision by passing this law, and held that the provision violated both the constitutional prohibition on Parliament passing laws to overturn judicial decisions and the constitutional protection of the right to freedom of assembly.

Facts

In 2005, the Constitutional Court of Uganda struck down section 32(2) of the Police Act, Cap 303 in Kivumbi v. Attorney General Constitutional Petition 9 of 2005. Section 32 was titled “Power to Regulate Assemblies and Processes” and subsection (2) stated “[i]f it comes to the knowledge of the inspector general that it is intended to convene any assembly or form any procession on any public road or street or at any place of pubic resort, and the inspector general has reasonable grounds for believing that the assembly or procession is likely to cause a breach of the peace, the inspector general may, by notice in writing to the person responsible for convening the assembly or forming the procession, prohibit the convening of the assembly or forming of the procession”.

In 2013, the Ugandan Parliament adopted the Public Order Management Act, 2013 (POMA) which included provisions restricting the holding of public meetings, assemblies and processions and granting the Inspector General of Police discretion to stop and disperse those public gatherings and to impose criminal sanctions on organizers of gatherings. Section 8 of POMA was criticized by various groups as being a re-enactment of section 32(2) of the Police Act which had been declared unconstitutional. Section 8 states: “(1) Subject to the directions of the Inspector General of police, an authorized officer or any other police officer of or above the rank of inspector, may stop or prevent the holding of a public meeting where the public meeting is held contrary to this Act; (2) An authorized officer may, for purposes of subsection (1), issue orders including an order for the dispersal of the public meeting, as are reasonable in the circumstances; (3) An authorized officer shall, in issuing an order under subsection (2), have regard to the rights and freedoms of persons in respect of whom the order has been issued and the rights and freedoms of other persons; (4) A person who neglects or refuses to obey an order under this section commits an offence of disobedience of lawful orders and is liable on conviction to the penalty for that offence under section 117 of the Penal Code Act”.

On December 10, 2013 three non-governmental organizations – the Human Rights Network Uganda, the Development Network of Indigenous Voluntary Associations and the Uganda Association of Female Lawyers – and two individuals – Muwanga Kivumbi, a Member of Parliament and the petitioner in the Kivumbi case, and Bishop Dr ZAC Niringiye – filed a constitutional petition before the Constitutional Court of Uganda challenging the constitutionality of various provisions of POMA. During the hearing of the case on February 29, 2019 the petitioners indicated that the only provision they would continue to challenge was section 8. They argued that section 8 infringed article 92 of the Constitution of Uganda, which states that “Parliament shall not pass any law to alter the decision or judgment of any court as between parties to the decision or judgment”, because the enactment of section 8 had the effect of overturning the Court’s decision in the Kivumbi case.

The Ugandan Constitution protects the right to freedom of assembly in article 29(1)(d) of the Constitution which states that “[e]very person shall have the right to… freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition”.

Decision Overview

Judge Barishaki delivered the majority judgment of the five-judge Constitutional Court. Judges Musoke, Kakuru and Kiryabwire wrote concurring judgments and Judge Musota wrote a dissenting judgment. The central issue for the Court’s determination was whether section 8 of POMA was constitutionally valid.

The petitioners argued that section 8 of POMA violated article 92 of the Constitution because it had been passed simply to overturn the decision of the Constitutional Court in the Kivumbi case. They submitted that article 92 serves to protect the separation of powers by prohibiting Parliament from reversing a judicial decision “whenever they are not happy with the decision of the court” [p. 7], and described section 8 of POMA and section 32(2) of the Police Act as fundamentally similar in that both were “prohibitive rather than regulatory” [p. 8].

The Attorney General argued that POMA seeks to “provide regulation of public meetings; to provide for the duties and responsibilities of police, organizers and participants in relation to public meetings, to prescribe measures for safeguarding public order; and for related matters” [p. 7-8]. He added that although individuals had the right to exercise their right to freedom of assembly and demonstration, law enforcement is also entitled to ensure that the exercise of those rights is in accordance with the Constitution: he said that it cannot be assumed that all demonstrators would exercise their rights lawfully. The Attorney General maintained that the effect of section 8 of POMA was not to overturn the decision in the Kivumbi case.

The Court noted that in interpreting the constitutionality of legislation it must have regard to the purpose and effect of the legislation, and stressed that “the duty imposed upon the Constitutional Court is not to push back Constitutional limits on the validity of Acts of Parliament that aim to whittle down liberties and rights by rather to expand oversight over the same” [p. 5].

The Court examined its decision in the Kivumbi case in which it had unanimously declared section 32(2) of the Police Act to be in violation of articles 20(2) and (29)(1)(d) of the Constitution. In that judgment, the Court had discussed the nature of the right to freedom of association, and noted that the rights to freedom of religion, belief and opinion, dignity, freedom of association and to peaceful assembly were “inherent and not granted by the State”, and that the rights protect the dissemination of controversial opinions [p. 11]. It had emphasized the critical role peaceful assemblies and protests play in a democracy and that “[m]aintaining the freedom to assemble and express dissent remains a powerful indicator of the democratic and political health of a country” [p. 12]. The Court in Kivumbi had recognized that a democratic society should encourage freedom of expression and tolerate “annoyance or disorder” in giving effect to that right [p. 12]. In striking down section 32(2), the Court had held that the power given to the Inspector General under section 32(2) of the Police Act was “prohibitive rather than regulatory” and that the provision infringed the right to freedom of assembly [p. 12]. The Court had also stressed that the police were empowered under other legislation to maintain law, and that the limits to the right imposed by section 32(2) went “beyond what is acceptable and demonstrably justifiable in a free and democratic society” [p. 13].

In analyzing section 8 of POMA the Court noted that it grants a discretionary power to the Inspector General (and other officers authorized by the Inspector General) to stop or prevent public meetings and to order the dispersal of a public gathering (all while having regard to the rights of the protestors), and that any failure to adhere to those orders constitutes a criminal offence. The Court characterized section 8 – as it had section 32(2) of the Police Act – as prohibitory and not regulatory in nature. Accordingly, the Court held that section 8 was “in pari materia [having the same purpose] with the nullified section 32(2) of the Police Act” [p. 17]. The Court noted that the various judgments in the Kivumbi case had explained in detail why laws cannot empower police to prevent public gatherings and that “[i]t is a pity that [the judges’] explanations for nullifying Section 32(2) of the Police Act were contemptuously ignored by parliament and the executive” in passing POMA [p. 17]. The Court held that, in passing section 8 of POMA, Parliament had acted in disregard of article 92 of the Constitution because its effect was to “water down” the effect of the Court’s judgment in the Kivumbi case. The Court stressed that although the wording of section 8 of POMA and section 32(2) of the Police Act differed, the “subject, matter, purpose and effect” of section 8 was the same as that of section 32(2). It further described section 8 as being a “reincarnation” of section 32(2).

The Court rejected the Attorney General’s argument that section 8 was enacted to give effect to article 29 of the Constitution, and instead described section 8’s purpose as being to “enable the police to suppress enjoyment of constitutionally guaranteed freedom of assembly using very arbitrary discretion” [p. 20-21]. With reference to the case of Mabirizi v. Atorney General [2019] UGSC 6 (18 April 2019), the Court noted that section 8 had enabled the abuse of power by conferring on police officers an arbitrary discretion to disperse rallies: it said that the “provision became a tool that the police directed to partisan purposes under the guise of preserving public order” [p. 21]. Although recognizing that protecting public order is necessary and that laws which regulate public order are justifiable in democracies, the Court stressed that this regulation cannot allow for the suppression of public gatherings or require prior permission for a public gathering. It added that the key element of a protest is whether it is peaceful and that whether a gathering is inconvenient or disruptive does not affect its legality, and so rejected the Attorney General’s submission that “public meetings should be held without inconveniencing anyone” [p. 22]. The Court reiterated that “the police have absolutely no legal authority to stop the holding of public gatherings on grounds of alleged possible breach of the peace” [p. 22], and held that a blanket prohibition on gatherings which have not obtained prior authorization is unconstitutional and in violation of article 29. The Court acknowledged that gatherings such as sports competitions can cause inconvenience, and noted that the “refusal to extend the same favor to public gatherings of a political nature is simply a reflection of an unconstitutional animus by law enforcement against political activities” [p. 23].

In undertaking a detailed analysis of comparative jurisprudence, the Court stressed that it can never be a criminal offence to disregard a police order that has been issued unlawfully and that, while the State does have a duty to prevent breaches of the peace during peaceful public gatherings, this not entitle law enforcement to “wantonly disperse public gatherings or prohibit meetings of groups agitating for political causes that are opposed to the government of the day” [p. 32]. It recognized that the breach of the peace could come from the actions of law enforcement interfering with the protestors’ rights, other individuals interfering with the protest or from protestors who depart from a peaceful protest’s aims. The Court also noted that section 8 conferred a blanket power on the police to stop public gatherings and that the police have powers under other laws to address violent gatherings. The Court stressed – as it had in the Kivumbi case – that if police anticipate that a public gathering may result in a breach of the peace their duty is to “provide reinforced deployments and not to prohibit the planned gathering altogether” and that such a duty is not onerous on the police [p. 17].

Accordingly, the Court held that section 8 was unconstitutional and invalid and that Parliament and the executive had acted in contravention of article 92 in adopting the provision. The Court noted that section 8 violated both article 92 and article 29, and that it would have declared the provision unconstitutional even if the Kivumbi case had not been decided previously.

In Judge Musoke’s concurring judgment she went beyond the question of section 8’s constitutionality and examined the constitutionality of the Act as a whole. She accepted the United Nations Human Rights Committee’s definition of an assembly in their General Comment 37, and commented that the definition of “public meeting” in POMA constitutes Parliament’s attempt to define an assembly in restrictive terms which allows for “selective application of the law” [p. 6 of Musoke judgment]. Accordingly, she would have declared that element of the Act unconstitutional as well. She noted that the effect of POMA is to empower the police with the discretion to determine individuals’ ability to exercise their right to freedom of assembly, and that the Act “embraces a regime of repression” which encourages the police to “begin with a presumption that assemblies should be stopped unless authorized by the police” [p. 10 of Musoke judgment]. Because she would have held that numerous provisions of POMA were unconstitutional, Judge Musoke would have struck down the Act as a whole.

Judge Kakuru agreed with Judge Musoke that – despite the petitioners abandoning some of its arguments on the unconstitutionality of provisions of POMA – all the initial grounds raised by them should be determined. He would have held that POMA served no purpose because there was existing law which regulated criminal conduct from public assemblies, and that the limitations to the rights to freedom of assembly in the Act were not justifiable. With reference to comparative jurisprudence, he highlighted the notification provisions in the Act, and held that the restrictions it places on individuals made it impossible to hold a public gathering without first obtaining police permission which was not justifiable in a free and democratic society [p. 21 of Kakuru judgment]. Judge Kakuru described the effect of POMA as being to criminalize “legitimate political dissent, debate, discussion and any other form public political expression”, “legitimate acts of the press and media” and “membership of political opposition and other members of society considered by the Police as being undesirable elements of society” [p. 29 of Kakuru judgment], and noted that the Act has been used to prevent private gatherings in private homes. Accordingly, he would have declared the Act unconstitutional in its entirety.

Judge Kiryabwire also delivered a concurring judgment in which he stressed the importance of ensuring that Parliament does not nullify the effect of court judgments by overturning them through legislation.

In the dissenting judgment, Judge Musota stated that both the wording and the nature of section 8 and section 32(2) differed substantially: he would have held that as section 8 only permits the stopping of a protest when it is in conflict with the Act, it is an acceptable and justifiable limitation of the right. He said that he did not interpret Parliament’s action in enacting section 8 as overturning the Constitutional Court’s decision in the Kivumbi case as he stated that section 8 provided an “objective test for regulating the public” as opposed to section 32(2)’s absolute discretion given to police officers [p. 16 of Musota judgment].