Wakilii

Human Rights Network Uganda & 4 Ors v Attorney General (Constitutional Petition No. 56 of 2013)

Constitutional Court · [2020] UGCC 6 · 2020 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) & (4) challenging the constitutionality of provisions of the Public Order Management Act 2013
Decision
Petition allowed; Section 8 of the Public Order Management Act 2013 declared inconsistent with Articles 29, 43 and 92 of the Constitution and null and void

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Holding

The Constitutional Court, by majority, held that Section 8 of the Public Order Management Act 2013 is in pari materia with Section 32(2) of the Police Act, which the Court had earlier nullified in Muwanga Kivumbi v Attorney General. By re-enacting a prohibitory (rather than regulatory) police power to stop and disperse public meetings, Parliament acted to alter that decision contrary to Article 92, and also infringed the freedom of assembly under Article 29 beyond what is justifiable under Article 43. The petition was allowed and Section 8 declared null and void, with costs to the Petitioners. Musota JA dissented, finding Section 8 regulatory and constitutional.

Facts

In Constitutional Petition No. 9 of 2005 (Muwanga Kivumbi v Attorney General), the Constitutional Court declared Section 32(2) of the Police Act unconstitutional for conferring prohibitory, rather than regulatory, powers on the Inspector General of Police over public assemblies. In 2013 Parliament passed the Public Order Management Act (POMA), which was assented to. The Petitioners, civil society organisations and individuals (including Muwanga Kivumbi, the petitioner in the 2005 case), challenged various sections of POMA. At the hearing, counsel for the Petitioners abandoned all issues except the constitutionality of Section 8 of POMA, which empowers an authorised police officer to stop, prevent or disperse a public meeting held contrary to the Act, with disobedience punishable under Section 117 of the Penal Code Act. The Petitioners contended Section 8 re-enacted the substance of the nullified Section 32(2), thereby altering the Court's earlier decision contrary to Article 92.

Issues

  1. Whether the enactment of and assent to Section 8 of the Public Order Management Act 2013 is inconsistent with and in contravention of Article 92 of the 1995 Constitution.
  2. Whether the Petitioners are entitled to the remedies sought.

Orders

  • The petition is allowed.
  • The action of the Respondent in enacting and assenting to Section 8 of the Public Order Management Act 2013, which is materially similar to Section 32(2) of the Police Act declared unconstitutional in Constitutional Petition No. 9 of 2005 (Muwanga Kivumbi v Attorney General), is declared inconsistent with and in contravention of Articles 29, 43 and 92 of the Constitution.
  • The Petitioners are awarded the costs of the petition.

Key headnotes

Constitutional Law — Restriction on Retrospective Legislation (Article 92) — Parliament Altering a Court Decision by Re-enacting a Nullified Provision
Where Parliament enacts a legislative provision that is in pari materia with a statutory provision previously declared unconstitutional by the Constitutional Court, and the purpose and effect of the new provision is to water down or reverse that decision, the enactment contravenes Article 92 of the Constitution, which prohibits Parliament from passing any law to alter the decision or judgment of a court.
Human Rights — Freedom of Assembly (Article 29(1)(d)) — Police Powers Over Public Meetings — Prohibitory Versus Regulatory Powers
A statutory power vesting the police with discretion to stop, prevent or disperse public meetings on grounds of an apprehended breach of the peace is prohibitory rather than regulatory and constitutes an unjustified limitation on the freedom to assemble and demonstrate; the duty of the police is to facilitate and supervise peaceful assemblies, not to prohibit them.
Human Rights — Limitation of Rights (Article 43) — Demonstrably Justifiable Test in a Free and Democratic Society
Any limitation on a constitutionally guaranteed right or freedom must be demonstrably justifiable and acceptable in a free and democratic society under Article 43(2)(c); the burden lies on the State to prove that the limitation is necessary, rational, proportionate and not arbitrary, vague or overly broad.
Constitutional Law — Independence of the Judiciary (Article 128) — Separation of Powers
Legislation that de facto alters or undermines a judicial decision interferes with the independence of the judiciary and the doctrine of separation of powers; a party dissatisfied with a court decision must pursue the constitutionally established appellate process and may not seek to overturn the decision through legislation.
Statutory Interpretation — Constitutionality of Legislation — Purpose and Effect Test
In determining the constitutionality of legislation, both its purpose and its effect must be considered; a law may be unconstitutional by reason of either an unconstitutional purpose or an unconstitutional effect produced through its practical application and enforcement.
Constitutional Law — Constitutional Court — Duty to Determine All Issues Notwithstanding Abandonment by Counsel
The Constitutional Court is obliged to pronounce on the constitutionality of an impugned provision once it has been challenged in a petition, and may proceed to determine grounds notwithstanding their purported abandonment by a party's counsel.
Human Rights — Freedom of Assembly — Notification Versus Authorisation Regimes — No Requirement of Prior Police Permission
Police permission is not a precondition to the public exercising the right to assemble or demonstrate; a blanket prohibition on public meetings lacking police permission or prior notification is an unlawful limitation on the freedoms guaranteed by Article 29.

Legislation cited (23)

  • Public Order Management Act 2013 s.8
  • Public Order Management Act 2013 s.3
  • Public Order Management Act 2013 s.4
  • Public Order Management Act 2013 s.5
  • Public Order Management Act 2013 s.6
  • Public Order Management Act 2013 s.7
  • Public Order Management Act 2013 s.9
  • Public Order Management Act 2013 s.10
  • Public Order Management Act 2013 s.12
  • Public Order Management Act 2013 s.13
  • Public Order Management Act 2013 s.14
  • Police Act Cap 303 s.32(2)
  • Constitution of Uganda 1995 Article 2
  • Constitution of Uganda 1995 Article 20
  • Constitution of Uganda 1995 Article 29
  • Constitution of Uganda 1995 Article 43
  • Constitution of Uganda 1995 Article 92
  • Constitution of Uganda 1995 Article 128
  • Constitution of Uganda 1995 Article 137
  • Constitution of Uganda 1995 Article 212
  • Penal Code Act s.117
  • Penal Code Act s.50
  • Constitutional Court (Petitions and References) Rules 2005, S.I. No. 91 of 2005

Cases cited (34)

  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • Charles Onyango Obbo & Andrew Mwenda v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Col (Rtd) Dr Kiiza Besigye v Attorney General (Constitutional Petition No. 33 of 2011)
  • Moses Mwandha v Attorney General (Constitutional Petition No. 5 of 2007)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • CEHURD & 3 Ors v Attorney General (Constitutional Appeal No. 1 of 2013)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Appeal No. 3 of 2009)
  • Dr James Rwanyarare & Anor v Attorney General (Constitutional Petition No. 5 of 1999)
  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Olara Otunnu v Attorney General (Constitutional Petition No. 12 of 2010)
  • Gerald Karuhanga vs Attorney General
  • Male Mabirizi & Others vs Attorney General
  • Trop v Dulles 356 US 86 (1958)
  • Redmond-Bate v DPP [1999] EWHC Admin 733
  • Beatty v Gillbanks (1882) 9 QBD 308
  • R v Nicol and Selvanayagam [1996] Crim LR 318
  • Wise v Dunning [1902] 1 KB 167
  • R v Howell [1982] QB 416
  • Duncan v Jones [1936] 1 KB 218
  • Steel and Others v United Kingdom (1998) (App. 67/1997)
  • R v Jones [2007] 1 AC 13
  • Edwards v South Carolina 372 US 229 (1963)
  • Shuttlesworth v Birmingham 394 US 147 (1969)
  • SATAWU & Anor v Garvas & Ors [2012] ZACC 13
  • Shri Prithvi Cotton Mills Ltd v Broach Borough Municipality, AIR 1970 SC 192
  • Sebaggala v Attorney General & Ors [1995-1998] 1 EA 295
  • Uganda Law Society v Attorney General [2001] 1 EA 301
  • Speaker of the National Assembly v De Luke 1999 (4) S.A (SCA)
  • Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712
  • R v Oakes (1986) 26 DLR (4th) 200
  • Pumbun & Anor v Attorney General & Anor [1993] 2 LRC 317
  • Chavunduka & Another vs Minister of Home Affairs and Another SC/2000 (Supreme Court of Zimbabwe)
  • Sunday Times v United Kingdom (1979-80) 2 EHRR 245
  • R v Big M Drug Mart Ltd [1985] 1 SCR 295
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