Wakilii

Lugonvu & 3 Ors v Attorney General (Constitutional Petition No. 24 of 2009)

Constitutional Court · [2015] UGCC 15 · 2015 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging government order preventing Kabaka of Buganda from visiting Kayunga District
Decision
Petition allowed by majority; declaration issued that police acted unconstitutionally in preventing Kabaka's visit to Kayunga

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

By a 3-2 majority, the Constitutional Court held that the Uganda Police Force acted unconstitutionally in preventing the Kabaka of Buganda from visiting Kayunga District in September 2009. The police had no legal authority to prohibit the Kabaka and his officials from exercising their constitutional right to freedom of movement under Article 29(2)(a). The police role is regulatory, not prohibitive. The court found no evidence that the preparatory activities for the visit threatened anyone's rights or constituted unlawful assembly. The discrimination claim was dismissed for lack of evidence.

Facts

In September 2009, the Kabaka of Buganda planned to visit Kayunga District to celebrate Buganda Youth Day on 12th September. The Banyala community in Kayunga planned a peaceful demonstration against the visit. Between 6th and 10th September, the Regional Police Commander stopped Buganda officials and youths from erecting stalls and an arch in preparation for the visit, citing ongoing government-brokered talks. On 10th September, the Katikiro was stopped at Sezibwa bridge from entering Kayunga, with police citing security concerns. Following these events, riots broke out in Kampala. The Kabaka called off the visit on 11th September. The petitioners challenged the police actions as unconstitutional violations of freedom of movement and assembly.

Issues

  1. Whether the Uganda Police Force acted unconstitutionally to prevent the Kabaka of Buganda from visiting Kayunga District by disrupting all lawful activities for the preparation of the Kabaka's visit.
  2. Whether the Kabaka of Buganda was discriminated against in contravention of Article 21 of the Constitution.

Orders

  • Petition allowed by majority of 3 to 2.
  • Declaration issued that the Uganda Police Force acted unconstitutionally to prevent the Kabaka of Buganda from visiting Kayunga District by disrupting all lawful activities for the preparation of the Kabaka's visit scheduled for 12th September 2009.
  • Declaration that the police contravened Articles 20(2), 29(1)(d), 29(2)(a) and 43 of the Constitution.
  • Costs of the petition awarded to the petitioners.

Key headnotes

Freedom of Movement — Police Powers — Prohibition versus Regulation
The Uganda Police Force has no power to prohibit the exercise of the constitutional right to freedom of movement under Article 29(2)(a). The police role is regulatory, not prohibitive. Police must regulate the exercise of rights to ensure they are enjoyed peacefully, but cannot extinguish or prohibit their enjoyment.
Fundamental Rights — Inherent Nature — State Obligation
Fundamental rights and freedoms are inherent to the people under Article 20(1) and are not granted by the State. They are simply recognised and protected by Chapter 4 of the Constitution. All agencies of State are obliged under Article 20(2) to respect, uphold and promote their enjoyment, not merely to refrain from violating them.
Limitation of Rights — Article 43 — Demonstrably Justifiable Test
Any limitation on the enjoyment of fundamental rights must be acceptable and demonstrably justifiable in a free and democratic society. Protection of guaranteed rights is the primary objective of the Constitution; limiting their enjoyment is a secondary objective that can override the primary objective only in exceptional circumstances that give rise to actual mischief or danger, not speculative or conjectural mischief.
Freedom of Assembly — Police Duty — Security Provision
Where two groups wish to exercise their respective constitutional rights to assemble and demonstrate, the duty of the police is not to extinguish the enjoyment of either group's rights but to regulate and supervise both sides by providing security and putting in place measures to ensure each side enjoys its respective right. The police must employ all its machinery, resources and powers, including arrest and prosecution of those causing breach of peace, but such deployment must be geared towards ensuring enjoyment of constitutional rights, not trampling upon them.
Traditional and Cultural Leaders — Freedom of Movement within Kingdom
The right of a traditional or cultural leader to move within any part of the kingdom is inherent and protected by Article 246 of the Constitution. A traditional leader as a citizen of Uganda has a right to be in any part of Uganda, including areas within the kingdom's jurisdiction, for lawful purposes. No institution or leader has power to declare a particular area of Uganda to be the preserve of only members of their community to the exclusion of other Ugandans as regards the right to move freely and reside in any part of Uganda.
Police Powers — Unlawful Interference — Lawful Activities
The police have no authority to interfere with persons engaged in lawful and peaceful activity that poses no threat to anyone and does not infringe on anyone else's rights or freedoms. Where police stop citizens from carrying out lawful preparatory activities without legal justification, the police act unlawfully and have no legal basis for issuing a proclamation to disperse or using force to disperse such citizens.
Precedent — Constitutional Court Decisions — Binding Effect
The Constitutional Court is obliged to follow its own previous decisions unless they have been overturned. Where the Constitutional Court has previously declared a provision of an Act unconstitutional, that declaration binds the court in subsequent cases and renders related provisions otiose.

Legislation cited (28)

  • Constitution of Uganda Article 20
  • Constitution of Uganda Article 20(1)
  • Constitution of Uganda Article 20(2)
  • Constitution of Uganda Article 21
  • Constitution of Uganda Article 21(1)
  • Constitution of Uganda Article 21(2)
  • Constitution of Uganda Article 21(3)
  • Constitution of Uganda Article 24
  • Constitution of Uganda Article 29(1)(d)
  • Constitution of Uganda Article 29(1)(e)
  • Constitution of Uganda Article 29(2)(a)
  • Constitution of Uganda Article 37
  • Constitution of Uganda Article 43
  • Constitution of Uganda Article 43(1)
  • Constitution of Uganda Article 43(2)
  • Constitution of Uganda Article 43(2)(c)
  • Constitution of Uganda Article 137(3)
  • Constitution of Uganda Article 212
  • Constitution of Uganda Article 214
  • Constitution of Uganda Article 246
  • Constitution of Uganda Article 246(1)
  • Police Act Cap 303 s.32
  • Police Act Cap 303 s.32(2)
  • Police Act Cap 303 s.32(3)
  • Police Act Cap 303 s.33
  • Police Act Cap 303 s.34
  • Penal Code Act s.65
  • Public Order and Management Act 2013

Cases cited (13)

  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2008)
  • Attorney General v Salvatori Abuki and Richard Obuga (Constitutional Appeal No. 1 of 1998)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Charles Onyango Obbo and Andrew Mwenda v Attorney General (Constitutional Appeal No. 2 of 2012)
  • Charles Onyango Obbo & Anor v Attorney General (Constitutional Petition No. 15 of 1997)
  • Bernard Otim v Uganda (Constitutional Reference No. 35 of 2010)
  • Queen VS Big Drugmark Ltd (others intervening) 1996 LRC (Constitution) 332
  • Ryan v Attorney General [1965] IR 294
  • R v Oakes [1986] 1 S.C.R. 103
  • BAKER V WINGO 407 U.S
  • R V MORIN [1992] 1 S.C.R 771
  • Regina Vs Oakes
  • R Vs Big M Drug Mart Ltd
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.