Wakilii

Col (Rtd) Dr. Kiiza Besigye v Attorney General (Constitutional Petition No. 33 of 2011)

Court of Appeal · [2019] UGCA 2030 · 2019 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3)(a) and (b) challenging the constitutionality of section 65(1) and (2) of the Penal Code Act and acts of the police
Decision
Petition dismissed; section 65(1) and (2) of the Penal Code Act upheld as constitutional

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Constitutional Court, by majority, dismissed the petition challenging the constitutionality of section 65(1) and (2) of the Penal Code Act, which defines unlawful assembly and riot. The Court held that the rights to freedom of speech, assembly and demonstration are not absolute and are subject to the limitations in Article 43 of the Constitution. Since the State has a duty under Article 212 to preserve law and order and prevent crime, section 65 legitimately criminalises assemblies that reasonably cause fear of a breach of peace, and is not inconsistent with the Constitution. Each party was ordered to bear its own costs.

Outcome

Petition dismissed; section 65(1) and (2) of the Penal Code Act upheld as constitutional

Facts

The petitioner, a retired colonel, medical doctor and opposition politician, was a presidential candidate for the Forum for Democratic Change in the 2011 general elections. Following the elections, he supported a civic activists' pressure group, Activists for Change (A4C), which encouraged people to walk to work two days a week to draw the Government's attention to escalating fuel prices and the cost of living. As a consequence of participating in this initiative, the petitioner was repeatedly arrested, obstructed and charged before the Nabweru and Kasangati Magistrates' Courts with unlawful assembly contrary to section 65 of the Penal Code Act. The petitioner maintained he was never violent and never called on others to breach the peace. He petitioned the Constitutional Court seeking declarations that section 65(1) and (2) of the Penal Code Act was unconstitutional and that his arrests and prosecutions violated his constitutional rights to freedom of expression, assembly, demonstration and association.

Issues

  1. Whether the petition discloses any question for constitutional interpretation under Article 137(3)(a) and (b) of the Constitution.
  2. Whether section 65(1) and (2) of the Penal Code Act is inconsistent with or in contravention of Articles 21(1) and (2), 29(1)(a),(b),(d) and (e), 43(2)(a) and 120(5) of the Constitution.
  3. What remedies are available to the parties.

Orders

  • The petition is dismissed.
  • Section 65(1) and (2) of the Penal Code Act is declared not unconstitutional and not inconsistent with the cited Articles of the Constitution.
  • Each party to bear its own costs.

Rules and key headnotes

Constitutional Interpretation — Cause of Action under Article 137(3)
A petition sufficiently discloses a cause of action for constitutional interpretation where it specifies the Act or provision complained of and identifies the constitutional provision with which it is alleged to be inconsistent, and seeks a declaration to that effect; a liberal and broader interpretation is applied to constitutional petitions than to ordinary plaints.
Freedom of Assembly and Expression — Limitations under Article 43
The fundamental rights to freedom of speech, expression, assembly and demonstration are not absolute and must be enjoyed within the confines of the law and subject to the general limitations in Article 43 of the Constitution, which preserves the public interest and the rights of others.
Constitutionality of Legislation — Unlawful Assembly under Penal Code Act s.65
Section 65(1) and (2) of the Penal Code Act, which criminalises assemblies conducted in a manner reasonably causing persons in the neighbourhood to fear a breach of the peace, is not inconsistent with the Constitution, as it serves the State's duty under Article 212 to preserve law and order and prevent crime and protects the rights of others.
Freedom of Assembly — Criminalising Political Dissent (minority reasoning)
Citizens are free to walk, demonstrate or otherwise express discontent with government policies within the law, and members of opposition and ruling parties enjoy the same rights; criminalising peaceful dissent is unconstitutional.
Contempt of Court — Denial of Audience to a Party in Contempt (minority reasoning)
A court may deny audience to a person who is in contempt of court orders, and such a person may not be heard or granted a remedy until they purge the contempt; a judgment in rem binds the whole world within the court's jurisdiction.

Legislation cited (17)

Cases cited (21)

  • Besigye v Museveni (Presidential Election Petition No. 1 of 2001)
  • Besigye v Museveni and Electoral Commission (Election Petition No. 1 of 2006)
  • Mbabazi v Museveni, Attorney General & Electoral Commission (Election Petition No. 1 of 2016)
  • Uganda vs Commissioner of Prison Ex-parte Matovu 1966 EA [P54]
  • Jenison vs Baker [1972] 1 ALL 97
  • Stanbic Bank v Commissioner General Uganda Revenue Authority (Miscellaneous Application No. 42 of 2010)
  • Hadikinson vs Hadkinson [1952] ALL ER 567
  • Wildlife Lodges LTD v. Country Council of Narok [2005] EA 344
  • Uganda Super League Ltd v Attorney General and 6 Others (Constitutional Application No. 72 of 2013)
  • Housing Finance Bank Ltd v Musisi (Miscellaneous Application No. 158 of 2010)
  • Otunnu v Attorney General (Constitutional Petition No. 12 of 2010)
  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • Mwandha v Attorney General (Constitutional Petition No. 5 of 2007)
  • Behangana Demaro and Another v Attorney General (Constitutional Petition No. 53 of 2010)
  • Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Obudra v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Attorney General v Abuki (Constitutional Appeal No. 1 of 1998)
  • Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Karugaba v Attorney General (Constitutional Petition No. 1 of 2002)
  • Semwogerere v Attorney General (Constitutional Appeal No. 3 of 2003)
  • Attorney General v Kigula and Others (Constitutional Appeal No. 3 of 2006)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Col (Rtd) Dr. Kiiza Besigye v Attorney General (Constitutional Petition No. 33 of 2011) [2019] UGCA 2030 (12 December 2019)
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.