Wakilii

Olara Otunnu v Attorney General (Constitutional Petition No. 12 of 2010)

Constitutional Court · [2019] UGCC 3 · 2019 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of statutory provisions and acts of the Police
Decision
Petition partially succeeds; Section 27A(3) and (4) of the Police Act declared unconstitutional and void, with the remaining subsections upheld; each party to bear own costs.

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Cited — treatment unverified cited in 7 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court held the petition disclosed a cause of action. Section 27A(1) and (2) of the Police Act, empowering police to summon a person for questioning and require production of documents during investigations, limits personal liberty but is a limitation justifiable in a free and democratic society and does not amount to an arrest; it is constitutional. However, Section 27A(3), which penalises a person who is not yet a suspect for failing to attend or answer questions before being charged, is arbitrary, disproportionate and contravenes Article 23(1) and the presumption of innocence, while subsection (4) is ambiguous and conflicts with subsection (3); both contravene Article 28(12) and are declared null and void. The petition partially succeeds.

Facts

In 2010 the petitioner, then president of the Uganda Peoples Congress, conducted a country-wide political mobilisation tour. On 12 April 2010 he discussed public issues on Radio Lango in Lira Town. He was subsequently served with police summonses requiring his attendance at CID Headquarters for questioning over allegations that he had uttered defamatory words contrary to Section 179 of the Penal Code Act and, in a later summons, that he had promoted sectarianism contrary to Section 41 of the Penal Code Act. The police notified him that failure to appear would result in prosecution under Section 27A of the Police Act (as amended). Aggrieved, he petitioned the Constitutional Court challenging the constitutionality of Sections 179 and 41 of the Penal Code Act, Section 27A of the Police Act, and the acts of the police in summoning him. At the hearing he abandoned the challenges to Sections 179 and 41, the Court having already pronounced on them, leaving the constitutionality of Section 27A of the Police Act for determination.

Issues

  1. Whether the petition discloses a cause of action.
  2. Whether Section 27A of the Police Act (as amended) is inconsistent with or in contravention of Articles 23(1), 28(1) and (11), 29(1)(a)(b)(d) and (e), 29(2)(a) and (b) and 38 of the Constitution.

Orders

  • Section 27A subsections (3) and (4) of the Police Act (as amended) declared unconstitutional, null and void.
  • The petition partially succeeds.
  • Each party to bear their own costs.

Key headnotes

Constitutional Law — Constitutional Petitions — Disclosure of a Cause of Action
A constitutional petition sufficiently discloses a cause of action where it describes the act or omission complained of, identifies the constitutional provision alleged to be contravened, and seeks a declaration to that effect; a more liberal and broader interpretation applies to a constitutional petition than to an ordinary plaint.
Human Rights — Personal Liberty — Police Summons for Questioning
Summoning a person to attend a police station for questioning and to produce documents for the purposes of an investigation limits the right to personal liberty, but the limitation is acceptable and demonstrably justifiable in a free and democratic society and does not amount to an arrest; such a power is constitutional.
Constitutional Law — Limitation of Fundamental Rights — Article 43 and the Proportionality Test
A law limiting fundamental rights and freedoms is saved by Article 43 only where its objective is of sufficient importance and the means adopted are proportionate, namely rationally connected to the objective, impairing the right as little as possible, and not disproportionate in their effects; a law that is arbitrary or drafted too widely is null and void.
Human Rights — Presumption of Innocence and Self-Incrimination — Penalising a Person Before Charge
A statutory provision that penalises a person who is not yet a suspect for failing to attend or to answer questions before being charged is arbitrary and oppressive, contravenes the right to personal liberty under Article 23(1), and offends the presumption of innocence under Article 28(3)(a).
Criminal Law & Procedure — Certainty of Criminal Offences — Article 28(12)
A criminal provision that fails to define the offence and is couched in ambiguous terms contravenes Article 28(12) of the Constitution, which requires that an offence and its penalty be defined and prescribed by law, and is unconstitutional.
Statutory Interpretation — Constitutionality — Purpose and Effect of Legislation
In determining the constitutionality of legislation, both the purpose and the effect of the legislation must be taken into account, since an unconstitutional purpose or an unconstitutional effect may render a provision invalid.

Legislation cited (18)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.23(1)
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.28(3)(a)
  • Constitution of Uganda 1995 art.28(11)
  • Constitution of Uganda 1995 art.28(12)
  • Constitution of Uganda 1995 art.29(1)
  • Constitution of Uganda 1995 art.29(2)
  • Constitution of Uganda 1995 art.38
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.79(1)
  • Police Act (Cap 303) s.27A
  • Police Act (Cap 303) s.27
  • Penal Code Act (Cap 120) s.179
  • Penal Code Act (Cap 120) s.41
  • Constitutional Court (Petitions and References) Rules 2005 (SI No. 91 of 2005)
  • Evidence (Statements to Police Officer) Rules

Cases cited (16)

  • Jackie Mbuwembo and 3 others v Attorney General (Constitutional Reference No. 1 of 2008)
  • Andrew Muwenda and another v Attorney General (Constitutional Petition No. 4 of 2005 and Constitutional Petition No. 13 of 2006)
  • David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • The Queen v. Big M. Drug Mart Ltd. (1996) LRC (Const.) 332
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • South Dakola vs North Carolina 192, US 268 1940 LED 448
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Apollo Mboya v Attorney General and others (Petition No. 472 of 2017)
  • Male Mabirizi and others v Attorney General (Consolidated Constitutional Petitions Nos. 49 of 2017, 3, 5, 10 and 13 of 2018)
  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Raphael Baku Obudra v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Charles Onyango Obbo and Another v Attorney General (Constitutional Petition No. 15 of 1997)
  • Regina Vs Oakes 26 DLR (4th) 201
  • Iguatius Lanzetta vs The State of New Jersey 306 US 888 at 893
  • Pumbun vs The Attorney General [1993] 2 LRC 317 at p.323
  • DPP Vs Pete [19911 LRC (Const) 553
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.