Uganda v Lule and 4 Others (Constitutional Reference No. 22 of 2020)

Constitutional Court · [2023] UGCC 98 · 2023 Provisions Declared Unconstitutional ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional reference from criminal proceedings in the Buganda Road Chief Magistrate's Court, referred under Article 137(5) of the 1995 Constitution.

Decision

Sections 5 and 10 of the Public Order Management Act, to the extent they impose penal sanctions on peaceful but unauthorized assemblies, declared null and void; criminal proceedings against the accused permanently stayed.

The full judgment

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Holding

On a reference under Article 137(5), the Constitutional Court held that the right to freedom of assembly under Article 29(1)(d) is not absolute and may be limited under Article 43, and that notification requirements for public meetings are a permissible, reasonable limitation. However, applying a proportionality test, the Court held that the penal sanctions imposed by Sections 5 and 10 of the Public Order Management Act on organizers and participants of peaceful but unauthorized assemblies are disproportionate and not demonstrably justifiable in a free and democratic society. Those provisions, to that extent, contravene Article 29(1)(d) and are null and void. The criminal proceedings against the accused were permanently stayed.

Facts

In 2018, the five accused persons were each charged before the Buganda Road Chief Magistrate's Court with disobedience of statutory duty contrary to Section 116 of the Penal Code Act. The charges arose from their alleged breach of duties imposed on organizers and participants of public meetings under Sections 5 and 10 of the Public Order Management Act, 2013. The accused pleaded not guilty and their trial commenced. On 28 September 2020, the trial Magistrate, under Article 137(5) of the Constitution, referred to the Constitutional Court the question whether Sections 5 and 10 of the Public Order Management Act contravene Article 29(1)(a) and (d) of the Constitution. At the hearing of the reference, only the prosecutor, represented by State Attorneys, appeared and filed submissions; neither the accused nor their counsel attended or filed submissions.

Issues

Whether Sections 5 and 10 of the Public Order Management Act, 2013 are in contravention of or inconsistent with Article 29(1)(a) and (d) of the 1995 Constitution.

Orders

Sections 5 and 10 of the Public Order Management Act, 2013, to the extent that they impose penal sanctions on organizers and participants in peaceful albeit unauthorized public meetings, demonstrations and assemblies, contravene Article 29(1)(d) of the 1995 Constitution and are null and void.
Declared that the charges against the accused persons, based on their participation in a peaceful albeit unauthorized public meeting, constituted an impermissible limitation on their right to freedom of assembly and contravene Article 29(1)(d) of the 1995 Constitution.
Order permanently staying the criminal proceedings against the accused persons in Buganda Road Chief Magistrate's Court Criminal Case No. 0676 of 2018.
The Registrar of the Constitutional Court to notify the Buganda Road Chief Magistrate's Court of the decision in this Reference.
No order as to costs.

Key headnotes

Freedom of Assembly — Nature of the Right — Limitation under Article 43

The right to freedom of assembly under Article 29(1)(d) of the Constitution is a fundamental right in a democratic society but is not absolute, and may be subjected to lawful limitations in accordance with Article 43, including reasonable regulatory requirements for public assemblies.

Freedom of Assembly — Notification Requirements — Permissible Limitation

A requirement that organizers give prior notice of an intention to hold a public meeting is a permissible limitation on the right to freedom of assembly, provided it is imposed in good faith to enable the authorities to ensure the smooth conduct of the assembly; the notice requirements under Section 5 of the Public Order Management Act are reasonable.

Limitation of Rights — Proportionality — Article 43(2)(c)

A measure limiting a constitutional right is acceptable and demonstrably justifiable in a free and democratic society under Article 43 only if it is proportionate, that is, the least intrusive and oppressive means available for achieving the intended purpose.

Freedom of Assembly — Penal Sanctions on Peaceful Unauthorized Assembly — Unconstitutionality

Imposing penal sanctions on organizers and participants in peaceful but unauthorized public assemblies is a disproportionate limitation on the right to freedom of assembly; more proportionate measures, such as directing dispersal, should be used, with penal sanctions reserved for actual violence. The penal sanctions in Sections 5 and 10 of the Public Order Management Act therefore contravene Article 29(1)(d) and are null and void to that extent.

Legislation cited (9)

Constitution of Uganda 1995 art.137(5)
Constitution of Uganda 1995 art.137(6)
Constitution of Uganda 1995 art.29(1)(a)
Constitution of Uganda 1995 art.29(1)(d)
Constitution of Uganda 1995 art.43
Public Order Management Act 2013 s.3
Public Order Management Act 2013 s.5
Public Order Management Act 2013 s.10
Penal Code Act s.116

Cases cited (5)

Human Rights Network Uganda and Others v Attorney General (Constitutional Petition No. 56 of 2013)
Muwanga Kivumbi vs. Attorney General, Constitutional Petition No. [illegible] of 2005 (unrepofted)
Djavit An v Turkey (Application No. 20652/92)
Kuznetsov v Russia (Application No. 10877/04)
Akgol and Gol v Turkey (Applications Nos. 28495/06 and 28516/06)

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.