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Mpunga and Another v Attorney General (Constitutional Petition No. 32 of 2012)

Constitutional Court · [2020] UGCC 16 · 2020 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the constitutionality of statutory provisions of the Penal Code Act
Decision
Petition allowed; section 56(2)(c) and dependent provisions of the Penal Code Act declared unconstitutional and the 2012 Order proscribing the societies quashed.

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Holding

The Constitutional Court held that section 56(2)(c) of the Penal Code Act — empowering the Minister or Attorney General to declare a society unlawful without notice, hearing, judicial inquiry or review — arbitrarily impairs the freedoms of association, assembly and expression and the right to a fair hearing, and is not demonstrably justifiable in a free and democratic society under Article 43. It is therefore inconsistent with Articles 21, 28, 29, 38 and 43. The consequential provisions (sections 59-64) fall to the extent they depend on such an order, and section 63 separately contravenes Article 26(2)(b)(i) by permitting forfeiture of property without prior adequate compensation. The petition succeeded and the 2012 Order proscribing the societies was quashed.

Facts

In 2011 a group of political activists formed a pressure group, Activists for Change (A4C), and launched a 'walk to work' campaign protesting corruption, bad governance and the rising cost of living. On 4 April 2012 the then Attorney General, exercising power under section 56(2)(c) of the Penal Code Act, declared A4C an unlawful society through the Penal Code (Declaration of Unlawful Societies) Order, 2012. After A4C was banned, the first petitioner and others formed another pressure group, 'For God and My Country' (4GC), which the police declared unlawful under section 56(3) on the ground that its acronym resembled A4C's and that the two groups shared office bearers. The petitioners contended that proscribing these civic pressure groups violated their rights under Chapter Four of the Constitution and that the relevant Penal Code provisions were unconstitutional. The respondent's answer was a bare denial; its supporting affidavit, sworn by a Principal State Attorney with no personal knowledge, was hearsay of nil evidential value, so the petitioner's affidavit stood uncontroverted.

Issues

  1. Whether section 56(2)(c) of the Penal Code Act, empowering the Minister or Attorney General to declare a society unlawful, is inconsistent with or contravenes the Constitution.
  2. Whether sections 57 to 64 of the Penal Code Act are unconstitutional to the extent that they derive their operation from an order made under section 56(2)(c).
  3. Whether section 63 of the Penal Code Act, governing disposition of the property of an unlawful society, contravenes Article 26(2) of the Constitution.
  4. Whether the impairment of the petitioners' Chapter 4 rights is saved by the limitation clause in Article 43 of the Constitution.

Orders

  • A declaration that section 56(2)(c) of the Penal Code Act is inconsistent with and in contravention of Articles 21, 28, 29, 38 and 43 of the Constitution.
  • A declaration that sections 59, 60, 61, 62, 63 and 64, to the extent that they relate to a society purported to be unlawful by reason of the operation of section 56(2)(c) of the Penal Code Act, contravene and are inconsistent with Articles 21, 29, 38 and 43 of the Constitution.
  • A declaration that section 63 of the Penal Code Act is inconsistent with and in contravention of Article 26(2)(b)(i) of the Constitution.
  • An order quashing the Penal Code (Declaration of Unlawful Societies) Order, Statutory Instrument No. 14 of 2012, issued on 4 April 2012.

Key headnotes

Constitutional Law — Limitation of Rights — Article 43 — Rationality Test
A law limiting a fundamental right is constitutionally permissible only where its legislative objective is sufficiently important to override the right, the measure is rationally connected to that objective and not arbitrary or unfair, and the means of impairment are no more than necessary and demonstrably justifiable in a free and democratic society.
Constitutional Law — Freedom of Association and Assembly — Ministerial Power to Proscribe Societies
A statutory power that allows the Minister or Attorney General to declare a society unlawful without notice to the affected party, without a hearing, judicial inquiry, or any provision for review is arbitrary and unfair, not demonstrably justifiable in a free and democratic society, and is therefore unconstitutional.
Human Rights — Enforcement — Shifting Burden of Proof
Where a petitioner establishes prima facie that a protected right exists and has been or is threatened to be impaired, the burden shifts to the respondent to prove that the impairment is justified, is as minimal as possible, and is necessary to protect the rights of others or the public interest in a free and democratic society.
Constitutional Law — Protection of Property — Article 26 — Compulsory Deprivation
A statutory provision vesting the property of a proscribed society in a state-appointed officer, without provision for prompt, fair and adequate compensation prior to the taking, contravenes Article 26(2)(b)(i) of the Constitution.
Constitutional Law — Constitutional Interpretation — Generous and Purposive Construction
Provisions of the Constitution that protect fundamental rights must be given a generous and purposive construction, read as a whole with each provision supporting the others, and interpreted having regard to evolving standards of human dignity so as not to whittle down any guaranteed right.
Constitutional Law — Severance — Consequential Invalidity of Dependent Provisions
Where statutory provisions derive their operation from a power that is itself unconstitutional, those provisions are consequentially unconstitutional to the extent that they depend on the exercise of that power.

Legislation cited (26)

  • Penal Code Act, Cap 120, s.56(2)(a)(iv),(vi),(vii)
  • Penal Code Act, Cap 120, s.56(2)(c)
  • Penal Code Act, Cap 120, s.56(3)
  • Penal Code Act, Cap 120, s.57
  • Penal Code Act, Cap 120, s.58
  • Penal Code Act, Cap 120, s.59
  • Penal Code Act, Cap 120, s.60
  • Penal Code Act, Cap 120, s.61
  • Penal Code Act, Cap 120, s.62
  • Penal Code Act, Cap 120, s.63
  • Penal Code Act, Cap 120, s.64
  • Constitution of Uganda 1995, art.1
  • Constitution of Uganda 1995, art.2
  • Constitution of Uganda 1995, art.21
  • Constitution of Uganda 1995, art.26(2)
  • Constitution of Uganda 1995, art.28(1)
  • Constitution of Uganda 1995, art.29
  • Constitution of Uganda 1995, art.38(2)
  • Constitution of Uganda 1995, art.42
  • Constitution of Uganda 1995, art.43
  • Constitution of Uganda 1995, art.44(c)
  • Constitution of Uganda 1995, art.126(1)
  • Constitution of Uganda 1995, art.137
  • Constitution of Uganda 1995, art.274
  • Evidence Act ss.100-104
  • Constitutional Court (Petitions and References) Rules 2005, r.3

Cases cited (14)

  • Moses Mwandha v Attorney General [2019] UGCC 5
  • Olara Otunnu v Attorney General [2019] UGCC 3
  • Charles Onyango Obbo & Another v Attorney General [2004] UGSC 1
  • Okello-Okello John Livingstone & Others v Attorney General (Constitutional Petition No. 4 of 2005)
  • Fox Odoi-Oywelowo v Attorney General (Constitutional Petition No. 8 of 2003)
  • Attorney General v Momodou Jobe (1984) AC 689
  • Unity Dow v Attorney General of Botswana [1992] LRC 623
  • Attorney General v Major General Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Paul K. Ssemogerere & 2 Others v Attorney General [2004] UGSC 10
  • Uganda Law Society v Attorney General [2006] UGCC 10
  • R v Big M Drug Mart Ltd [1985] 1 SCR 295
  • Mark Gova Chavunduka & Others v Minister of Home Affairs & Anor (S.C. 36 of 2000) [2000] JOL 6540 (ZS)
  • State of Madras v V. G. Row [1952] AIR 196
  • Uganda National Roads Authority v Irumba Asuman [2015] UGSC 22
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