Politicians Win Reprieve As Court Okays ‘Defiance’

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Last updated on January 5th, 2023 at 09:14 am

 


Ugandan politicians and activists have obtained reprieve from the wrath of Police and other security agencies after the Constitutional Court on Thursday  declared an ‘unfortunate’ Section of the Public Order Management Act ( POMA) unconstitutional and gave a nod to  defiance activities.

The Section, 8 of the POMA, substantially provided that the Inspector General of Police (IGP) or any other authorised officer (of or above the rank of inspector) may stop or prevent the holding of a public meeting where the meeting is held contrary to the Act ( ie. failure to notify the Police through the IGP, of the meeting and obtain permission to hold such meeting, etc).

The provision, right from the passing of the POMA in 2013, has been relied upon by the Uganda Police and agencies to disperse public meetings and protests especially those organised by politicians and activists which the Police have constantly argued are disruptive and inconveniencing or simply outside the law.

According to the Court, the Section was unfortunate and unconstitutional, first, because it violated Article 92 of the Constitution which bars Parliament from enacting laws that alter a decision or Judgement of any Court as between the parties to that decision or Judgement.

” Section 8 [ of the POMA] is a reincarnation of the nullified Section 32 (2) of the Police Act for all intents and purposes” Noted Justice Cheborion Barishaki, who delivered the majority  Judgement of the Court.

In 2008, the Constitutional Court declared Section 32 (2) of the Police Act unconstitutional for being inconsistent with Article 20 (1) (2) and 29 (1) (d) which guarantee freedom of expression.

Section 32 (2) of the Police Act provided that the Inspector General of Police may prohibit an assembly or procession “if it comes to his or her knowledge” that such assembly or procession would result into a breach of peace.

While acknowledging that Parliament was not targetting at the previous court decision in 2008 that invalidated Section 32 (2) of the Police Act ” per se,” the Court decided that Section 8 of the POMA had the effect of altering the previous court decision contrary to Article 92 of the Constitution and therefore unconstitutional.


When the Government Acts to Take Away Fundamental Rights… The Safeguards of the Constitution Should Be Examined With Special Diligence. If We Do Not, The Words Of The Constitution Become Little More Than Good Advice” – Chief Justice Earl Warren, US Supreme Court ( Quoted by the Court).


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Although, the only question before the Court was ” whether the enactment and assent to Section 8 of the Public Order Management Act is inconsistent with and in contravention of Article 92 [ discussed above] of the 1995 Constitution, ” the petitioners having abandoned all the other issues, the Court found this practice ‘unwise’ and proceeded to deal with the constitutional validity of the Section beyond its conformity with Article 92 of the Constitution, into its conformity, as well, with the freedom of expression guarantees of the Constitution.

” It does not matter that the petitioners have chosen to dispose of Section 8 of the POMA on the very narrow ground that it is a violation of Article 92 of the Constitution ” The Court said.

Thus it found that Section 8 of the POMA gave the Police ” broad discretionary powers to stop a public gathering” beyond what’s acceptable and demonstrably justifiable as provided for by the Constitution and therefore unconstitutional.

” World over, law enforcement organs in democratic states do not suppress public gatherings or protests in the name of protecting order. Neither do they require that organisers of public meetings or protests must have prior permission or clearances from the Police” The Court said, adding that;

” Provided a protest or public gathering is peaceful, it does not matter that it may be disruptive or even inconveniencing due to the large numbers of individuals that may participate”

Partisan Purposes

According to the Court, the principal purpose as to why Parliament enacted the controversial Section is to enable the Police suppress the enjoyment of  constitutionally guaranteed freedom of assembly using very arbitrary discretion.

” Section 8 authorised the Police to arbitrarily determine which rallies to disperse. The provision became a tool that the police directed to partisan purposes under the guise of preserving public order”

Defiance

During Uganda’s 2016 General Election, the then Forum For Democratic Change (FDC) Party presidential candidate, Dr Kizza Besigye came up with the so called “Defiance Campaign.”

Under the Defiance Campaign, Besigye explained, the FDC was to adopt an approach of defying what they termed as injustice.

This injustice, according to Besigye, included unjust and unlawful police orders restricting his and the Party’s public meetings, protests and processions.

The Defiance campaign, as expected, sparked controversy and the then Inspector General of Police, Gen Kale Kayihura warned Dr Besigye and the FDC against it.

Now, the Constitutional Court, says this type of defiance of unlawful police orders is legal.

” Unlawful orders including those issued by law enforcement agencies such as the Police may be lawfully disregarded ” Justice Barishaki said.

Police orders which are unlawful, according to the Court, include the prohibition of public meetings, protests or processions on ground that the organisers of such activities did not notify the Police and/or obtain permission to hold the same.

” Police permission is not required before the public can assemble or hold a demonstration” said the Court.

Under Section 5 of the Public Order Management Act, an organiser of a public meeting is required to notify the Police through the IGP or any other authorised officer of his or her or its intention to hold the public meeting and as already seen, under the now invalid Section 8, the IGP or such authorised officer could stop or prevent the holding of the meeting.

Proceeding to hold such a public meeting contrary to the IGP or other authorised officer’s orders under the now invalid Section 8 (4) of the POMA attracted criminal liability for the offense of ” disobedience of lawful orders” as defined under Section 117 of the Penal Code Act.

The Constitutional Court says this criminal liability is unconstitutional.

” No criminal liability should attach to an individual for disregarding a police order issued unlawfully even if under the guise of preventing a breach of peace” The Court said.

In reaching this reasoning, the Court relied on the Judgement of British Judge Lord Hoffman who in the case of R V. Jones said that:

” Civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history”

Conclusively, the Court urged “lenience” on the part of Police and the Courts of law when it comes to demonstrations, protests, and similar activities.

” Laws calculated to muzzle and penalise members of the public engaged in demonstrations, protests, and similar activities are not in the interests of protecting our young democracy” It said.

The Assumption That Public Meetings Of A Political Nature or Social Gatherings Held By Politicians Are More Likely To Cause A Breach of The Peace  Is Not Correct’

The learned Justices of the Constitutional Court sharply criticised the Attorney General’s argument in his capacity as the principal legal adviser of Government, that Section 8 of the POMA was intended to ‘operationalize Article 29 of the Constitution’ which guarantees the freedom of expression.

According to the Attorney General, it was important for Police to ‘regulate’ public meetings in order to avert a breach of peace.

Finding the provisions of Section 8 of the POMA ‘prohibitory’ rather than ‘regulatory,’ the learned Justices of the Court wondered why it was only public meetings or social gatherings organised by politicians that created likelihood of a breach of peace.

” There is little doubt that numerous social gatherings such as sports related gatherings, religious gatherings, wedding motorcades, etc cause some measure of inconvenience to the rest of the public going on about their private lives yet the same are routinely and rightly so allowed to proceed without disruption of law enforcement” The Court said, adding;

” This attitude must be applied to political protests and public meetings of a political nature”

For almost all public meetings organised by politicians, Uganda Police especially, have while stopping or dispersing the same argued likelihood of breach of peace as an almost direct result of failure to abide by the provisions of the POMA especially those pertaining to notification and permission.

According to the Court;

” the assumption that public meetings of a political nature or social gatherings held by politicians are more likely to cause a breach of peace because they have not been authorised by Police and should not be allowed to happen is not correct” and;

” neither is the assumption that failure to notify Police of an intended public meeting of a political nature a good enough excuse to violently disperse the same.”

Thus, ‘blanket prohibition’ on holding of a public meeting without police permission or prior notification is ‘simply unconstitutional and a violation of Article 29 of the Constitution’ which guarantees the freedom of assembly.


Reaction and Analysis

The decision of the Constitutional Court comes at a time when the country, like the rest of the world, is battling the deadly Coronavirus pandemic.

As at the time of publishing this article, Uganda had 18 confirmed cases of Coronavirus and in a bid to combat spread, the Country has been placed under a ‘partial lockdown’ as travel and movement of persons is restricted and persons are advised to stay in their homes.

As expected, the media attention except of niche media like The Legal Reports is heavily concentrated on covering the pandemic.

However, the Constitutional Court Judgement is important and timely, beyond deepening the Country’s rule of law, in the sense that it fortifies the Country’s political health especially as the 2021 General Election gets nearer.

Elections in Uganda are heavily punctuated with violence against public meetings organised by the opposition politicians and this has went on even with previous judgements clipping Police powers to stop or disperse the public meetings.

Forexample, the court decision invalidating Section 32 (2) of the Police Act which was on all fours with Section 8 of the POMA, was delivered in 2008, three years before the 2011 election. This, did not, however stop the police and agencies from stopping or dispersing public meetings to date.

In 2019, the Constitutional Court delivered another judgement against Police powers to disperse a gathering and again, this has not stopped the Police from stopping public meetings.

It is therefore necessary that the Courts adopt stern measures against this incessant disobedience of their orders which may include punishment of the recalcitrant individual police officers.

As the Constitutional Court said on Thursday, ” it is only proper that any judgement pronounced by the Court should receive the utmost respect. “

It is therefore left to be seen whether this reprieve from the wrath of Uganda Police will be temporary or permanent – whether the Force will respect the Court Judgement and enforce it or will simply disregard it as we have seen before.


Benjamin Ahikiiriza is a Legal Writer And Digital Communications & Marketing Specialist majoring in Lawyers, Law Firms And the larger Legal Sector.

Benjamin currently Works as the Director of Content and Business Development At LegalReports.


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