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Unwanted Witness v Attorney General (Constitutional Petition No. 7 of 2017)

Constitutional Court · [2022] UGCC 4 · 2022 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of provisions of the Anti-Terrorism Act and the Regulation of Interception of Communications Act
Decision
Petition dismissed; impugned provisions held constitutional; each party to bear its own costs

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Holding

The Constitutional Court dismissed a petition challenging several provisions of the Anti-Terrorism Act and the Regulation of Interception of Communications Act. It held that section 7(2) properly defines the offence of terrorism and prescribes a penalty, satisfying Article 28(12); that sections 9, 10(2) and 11(1)(c) are justifiable limitations under Article 43 and do not breach the freedoms of expression and association or the presumption of innocence; and that the interception powers in section 19 and the 2010 Act are demonstrably justifiable limitations on the right to privacy under Article 27, which is not non-derogable. The Court also observed the petition did not clearly state the petitioner's legal personality. The petition was dismissed with each party bearing its own costs.

Facts

The petitioner, an organisation registered in Uganda whose stated mandate is promoting and protecting freedoms of expression and speech, brought a petition through its Executive Director, a journalist. He alleged that, through his work, he had witnessed the muzzling of freedoms of speech and expression on account of allegations of terrorism, had visited detention centres, and had seen persons detained as terrorists who would otherwise have faced charges under the Penal Code. He challenged provisions of the Anti-Terrorism Act 2002 (as amended) — concerning the definition of terrorism, terrorist institutions, the Minister's power to amend the schedule of terrorist organisations, meetings addressed by terrorists, and interception powers — together with the Regulation of Interception of Communications Act 2010, as unconstitutional for breaching the rights to a defined offence, freedom of expression, freedom of association, the presumption of innocence, and privacy. The parties filed no written submissions but relied on a joint scheduling memorandum.

Issues

  1. Whether section 7(2) of the Anti-Terrorism Act is inconsistent with Article 28(12) of the Constitution for failing to define the offence of terrorism.
  2. Whether sections 9(1) and 9(2) of the Anti-Terrorism Act are inconsistent with the freedom of expression guaranteed in Article 29(1)(a) of the Constitution.
  3. Whether section 10(2) of the Anti-Terrorism Act is inconsistent with the presumption of innocence in Article 28(3)(a) and the freedom of association in Article 29(1)(e) of the Constitution.
  4. Whether section 11(1)(c) of the Anti-Terrorism Act is inconsistent with the freedoms of expression and association in Article 29(1)(a) and (e) of the Constitution.
  5. Whether section 19 of the Anti-Terrorism Act and the Regulation of Interception of Communications Act are inconsistent with the right to privacy in Article 27 of the Constitution.
  6. Whether the petitioner is entitled to the declarations and orders prayed for in the petition.

Orders

  • Petition dismissed.
  • Each party to bear its own costs of the petition.

Key headnotes

Constitutional Law — Constitutional Petitions — Cause of Action and Standing
A petition under Article 137(3) sufficiently discloses a cause of action where it describes the act or omission complained of and identifies the constitutional provision alleged to be contravened; however, a petitioner must clearly state its legal personality, since only a person may petition the Constitutional Court.
Criminal Law & Procedure — Definition of Offences — Certainty under Article 28(12)
An offence is validly created where the conduct constituting it is defined and the penalty prescribed by law; section 7(2) of the Anti-Terrorism Act defines the offence of terrorism and section 7(1) prescribes its penalty, satisfying Article 28(12) of the Constitution.
Human Rights — Freedom of Expression — Permissible Limitations under Article 43
The freedom of expression in Article 29(1)(a) is not absolute and may be limited in the public interest; criminalising the publication of material that promotes terrorism is a justifiable limitation derived from Article 43 and is not inconsistent with the Constitution.
Human Rights — Right to Privacy — Interception and Surveillance Powers
The right to privacy under Article 27 is not non-derogable and may be subjected to regulation by lawful court orders; interception and surveillance powers under section 19 of the Anti-Terrorism Act and the Regulation of Interception of Communications Act are demonstrably justifiable limitations in a free and democratic society.
Statutory Interpretation — Constitutional Interpretation — Purpose and Effect Test
In determining the constitutionality of legislation both its purpose and effect must be considered, and there is a rebuttable presumption that every enactment is constitutional, the onus of rebutting which lies on the party challenging it.
Constitutional Law — Separation of Powers — Ministerial Power to Amend Schedule
A statutory power vested in a Minister to amend a schedule of terrorist organisations by statutory instrument with Cabinet approval, subject to judicial review of the resulting instrument, does not offend the presumption of innocence or the freedom of association.

Legislation cited (24)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.28(12)
  • Constitution of Uganda 1995 art.29(1)(a)
  • Constitution of Uganda 1995 art.28(3)(a)
  • Constitution of Uganda 1995 art.29(1)(e)
  • Constitution of Uganda 1995 art.27
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.2(2)
  • Anti-Terrorism Act 2002 s.2
  • Anti-Terrorism Act 2002 s.7(1)
  • Anti-Terrorism Act 2002 s.7(2)
  • Anti-Terrorism Act 2002 s.9(1)
  • Anti-Terrorism Act 2002 s.9(2)
  • Anti-Terrorism Act 2002 s.10(2)
  • Anti-Terrorism Act 2002 s.11(1)(c)
  • Anti-Terrorism Act 2002 s.18
  • Anti-Terrorism Act 2002 s.19
  • Regulation of Interception of Communications Act 2010 s.4(2)
  • Regulation of Interception of Communications Act 2010 s.4(3)
  • Regulation of Interception of Communications Act 2010 s.6
  • Evidence Act s.106
  • Constitutional Court (Petitions and References) Rules S.I 91/2005 r.12

Cases cited (12)

  • Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Phillip Karugaba v Attorney General (Constitutional Petition No. 11 of 2002)
  • Advocates Coalition for Development and Environment v Attorney General (Constitutional Petition No. 14 of 2011)
  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Raphael Baku Obudra v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • South Dakota v North Carolina 192 US 268 (1940)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Buwembo v Attorney General (Constitutional Reference No. 1 of 2008)
  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • Akankwasa Damian v Uganda (Constitutional Reference No. 5 of 2011)
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