Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)

Constitutional Court · [2008] UGCC 34 · 2008 Petition Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137(3) challenging the constitutionality of section 32 of the Police Act

Decision

Petition allowed; section 32(2) of the Police Act declared inconsistent with the Constitution and null and void

The full judgment

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Holding

The Constitutional Court unanimously held that section 32(2) of the Police Act, which empowered the Inspector General of Police to prohibit the convening of an assembly or procession on a subjective belief that it was likely to cause a breach of the peace, is unconstitutional. The power was prohibitive rather than regulatory and open-ended, and constituted an unjustified limitation on the freedom to assemble and demonstrate peacefully guaranteed by Article 29(1)(d). The limitation was not acceptable or demonstrably justifiable in a free and democratic society under Article 43(2)(c), since the police retained other powers to maintain order. The subsection was declared inconsistent with Articles 20(1)(2) and 29(1)(d) and null and void.

Facts

At the time of filing in 2005, the petitioner was a member and coordinator of the Popular Resistance Against Life Presidency (PRALP), an organisation opposed to the lifting of presidential term limits, at a time when political parties could not operate as legal entities. PRALP sought permission to hold rallies and demonstrations in Masaka and Mukono. The authorities and police, citing sections 32, 34 and 35 of the Police Act, declared the planned rally illegal because the organisation was unregistered and advised the group to meet only in enclosed places, warning that any rally would be dispersed. A rally was held and dispersed by police, and the petitioner and others were arrested. Aggrieved, the petitioner filed this constitutional petition to have section 32 declared unconstitutional, contending that section 32(2) gave police unfettered power to prohibit lawful assemblies and demonstrations.

Issues

Whether section 32 of the Police Act contravenes Articles 20(1)(2), 21(1)(2), 29(1)(a)(b)(d)(e), 38(2), 42 and 43(3)(a)(c) of the Constitution.
Whether the police under section 32 of the Police Act have power to disperse lawful assemblies.
Whether the petitioner is entitled to the relief sought.

Orders

Petition allowed.
Declaration that section 32(2) of the Police Act is inconsistent with and contravenes Articles 20(1)(2) and 29(1)(d) of the Constitution and is null and void.
No order as to costs, the petition having been filed in the public interest.

Key headnotes

Fundamental Rights — Freedom of Assembly and Demonstration — Article 29(1)(d)

The freedom to assemble and to demonstrate together with others peacefully and unarmed, guaranteed under Article 29(1)(d) of the Constitution, is a fundamental right inherent in the individual and not granted by the State, and constitutes an essential foundation of a democratic society.

Limitation of Rights — Article 43(2)(c) — Objective Standard

Any limitation on the enjoyment of a fundamental right must fall within Article 43(2)(c) and be measured against an objective standard of what is acceptable and demonstrably justifiable in a free and democratic society; the legislative objective must be sufficiently important, the measures rationally connected and not arbitrary, and the means no more than necessary.

Police Powers — Prohibition versus Regulation of Assemblies

A statutory power vested in the police to prohibit the convening of an assembly or procession on a subjective belief of a likely breach of the peace is prohibitive rather than regulatory and, being open-ended and without limit of duration, is an unjustified limitation on the freedom of assembly that cannot be demonstrably justified in a free and democratic society.

Police Powers — Maintenance of Order — Alternative Means

The police are not rendered powerless by the absence of a power to prohibit assemblies; they may maintain law and order by providing security and supervision and by arresting persons who conduct themselves unlawfully or threaten violence during an assembly or procession.

Constitutional Interpretation — Purpose and Effect Principle

In determining the constitutionality of an impugned statutory provision, the court applies the purpose and effect principle of constitutional interpretation; a provision whose effect is to deny citizens the enjoyment of a guaranteed fundamental right is unconstitutional even where its purpose is the maintenance of order.

Legislation cited (12)

Police Act (Cap 303) s.32
Police Act (Cap 303) s.32(2)
Penal Code Act s.65
Penal Code Act s.50
Constitution of Uganda art.137(3)
Constitution of Uganda art.20(1)(2)
Constitution of Uganda art.21(1)(2)
Constitution of Uganda art.29(1)(d)
Constitution of Uganda art.43(2)(c)
Constitution of Uganda art.212
Public Order Act 1986 (UK) s.13
Human Rights Act 1998 (UK)

Cases cited (5)

Queen VS Big Drugmark Ltd (others intervening) 1996 LRC (Constitution) 332
Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
Paul Ssemogerere v Attorney General (Constitutional Petition No. 3 of 2000)
Onyango Obbo v Attorney General (Constitutional Appeal No. 2 of 2002)
Mark Gova &Another v Minister-of Home Affairs &Another; [S.C.36/200:Civil Application No.156/99]

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