Wakilii

Mwandha v Attorney General (Constitutional Petition No. 5 of 2007)

Constitutional Court · [2019] UGCC 5 · 2019 Petition Partly Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution challenging the validity of several sections of the Police Act and regulations of the Police Disciplinary Code of Conduct.
Decision
Petition partly granted; Sections 33, 34, 35, 36, 37 and 40 of the Police Act and Regulation 5 of the Disciplinary Code of Conduct declared unconstitutional, while challenges to delegation of appointment powers, the IGP's appointment and the Constitutional Square permit requirement were dismissed.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court declared Sections 33, 34, 35, 36, 37 and 40 of the Police Act unconstitutional for imposing prohibitive rather than regulatory restrictions on the freedom of assembly, expression and association under Article 29, beyond what Article 43(2)(c) permits. Sections 33 and 34 fell with Section 32, struck down in Muwanga Kivumbi; Section 35's gazetting and permit regime was arbitrary and prohibitive, and Section 36 granted police impermissible immunity for causing harm or death. Regulation 5, barring an officer's marriage to a foreigner without the IGP's approval, was also unconstitutional. The Court upheld the delegation of appointment powers, the IGP's appointment, and the permit requirement at the Constitutional Square. The petition succeeded only in part.

Facts

The Busoga Pressure Group for Development, of which the petitioner is the coordinator, applied to the Inspector General of Police for permission to hold a peaceful demonstration against the Uganda Investment Authority's alleged failure to equitably distribute investment opportunities between Kampala and Jinja. On 27 September 2006 the IGP informed the group that a demonstration was unnecessary, advised them to channel their grievances to their members of parliament, and denied permission. Aggrieved by the refusal, the petitioner brought this petition under Article 137 of the Constitution seeking declarations that various sections of the Police Act and regulations of the police Disciplinary Code of Conduct, under which such permission could be withheld, were inconsistent with the Constitution.

Issues

  1. Whether Sections 33 and 34 of the Police Act remain valid law in light of the Constitutional Court decision in Muwanga Kivumbi v Attorney General striking down Section 32.
  2. Whether the police powers under Sections 35, 36, 37 and 40 of the Police Act are inconsistent with Articles 29(1)(a) and (d), 29(2), 38 and 212 of the Constitution.
  3. Whether the police disciplinary procedure under the Police Act contravenes Article 42 of the Constitution.
  4. Whether specified regulations of the Disciplinary Code of Conduct contravene Articles 24, 27(2), 28 and 29 of the Constitution.
  5. Whether the delegation of appointment authority to the Police Authority and the Inspector General by the President is inconsistent with Articles 171 and 172(1)(b) of the Constitution.
  6. Whether the appointment of Major General Kale Kayihura as IGP without police training contravenes Article 211(3) of the Constitution.
  7. Whether the banning of rallies, assemblies, processions and demonstrations at the Constitutional Square is unconstitutional.

Orders

  • Sections 33 and 34 of the Police Act declared unconstitutional.
  • Sections 35, 36, 37 and 40 of the Police Act declared unconstitutional.
  • Regulation 5 of the Disciplinary Code of Conduct declared unconstitutional.
  • The remaining regulations challenged under issue 4 found constitutional.
  • Petition dismissed in respect of issues 5, 6 and 7.
  • No order as to costs, this being a public interest petition.

Key headnotes

Constitutional Law — Fundamental Rights — Inherent and inalienable nature
Fundamental rights enshrined in the Constitution are inherent and not granted by the State; the State cannot take them away but may only limit them within the bounds of Article 43(2)(c).
Constitutional Law — Limitation of Rights — Article 43(2)(c) objective standard and burden of proof
Any limitation on the enjoyment of a fundamental right is valid only if it does not exceed what is acceptable and demonstrably justifiable in a free and democratic society, measured against an objective standard; the onus of proving justification lies on the party seeking to impose the limitation.
Human Rights — Freedom of Assembly — Prohibitive versus regulatory police powers
Statutory powers that enable the police or a minister to prohibit, rather than merely regulate, peaceful assemblies and processions constitute an unjustified limitation on the freedom of assembly under Article 29(1)(d) and are unconstitutional.
Statutory Interpretation — Severance — Interdependent provisions
Where statutory provisions are intertwined and meant to be read and enforced together, the striking down of the foundational provision necessarily renders the dependent provisions, which cannot stand alone, equally unconstitutional.
Human Rights — Use of Force — Statutory immunity for police causing harm or death
A law that authorises police to use all necessary force to disperse a non-violent, unarmed assembly and grants immunity from criminal and civil liability for resulting harm or death is unconstitutional, offending the right to human dignity and protection from inhuman treatment.
Family Law — Right to Marry — Statutory restriction requiring official approval
A regulation requiring a police officer to obtain the Inspector General's written approval before marrying a foreign national unconstitutionally restricts the right to marry guaranteed under Article 31 of the Constitution.
Administrative Law — Appointment of Public Officers — Qualifications of the Inspector General of Police
The Constitution does not prescribe specific qualifications for the office of Inspector General of Police; the President is therefore empowered to appoint any person he believes will serve the office, and such an appointment does not contravene Article 211(3).

Legislation cited (30)

  • Police Act Cap 303 s.32
  • Police Act Cap 303 s.33
  • Police Act Cap 303 s.34
  • Police Act Cap 303 s.35
  • Police Act Cap 303 s.36
  • Police Act Cap 303 s.37
  • Police Act Cap 303 s.40
  • Police Act Cap 303 s.13
  • Police (Amendment) Act 2006 s.13
  • Penal Code Act s.65
  • Prevention and Prohibition of Torture Act 2012
  • Constitution of Uganda 1995 art.1
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.24
  • Constitution of Uganda 1995 art.27(2)
  • Constitution of Uganda 1995 art.29(1)(d)
  • Constitution of Uganda 1995 art.31
  • Constitution of Uganda 1995 art.38
  • Constitution of Uganda 1995 art.43(2)(c)
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.171
  • Constitution of Uganda 1995 art.172
  • Constitution of Uganda 1995 art.211(3)
  • Constitution of Uganda 1995 art.212
  • Constitution of Uganda 1995 art.213
  • Civil Procedure Rules O.15 r.1(5)
  • Civil Procedure Rules O.15 r.5
  • Canadian Charter of Rights and Freedoms s.1
  • United Kingdom Public Order Act 1986 s.13

Cases cited (8)

  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • Charles Onyango Obbo and Andrew Mwenda v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Attorney General v Salvatori Abuki and Richard Obuga (Constitutional Appeal No. 1 of 1998)
  • Dr. James Rwanyarare v Attorney General (Constitutional Petition No. 7 of 2002)
  • R v Oakes [1986] 26 DLR (4th) 200
  • The Queen v Big M Drug Mart Ltd [1996] LRC (Const) 332
  • SATAWU v Garvas 2013 (1) SA 83 (CC)
  • Mlungwana v The State (A431/15) [2018] ZAWCHC 3
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.