The Constitutional Court has quashed Section 8 of the Public Order Management Act (POMA) that gave the Police sweeping powers to prohibit or permit public meetings.
In a majority decision of 4-1, Justices Kenneth Kakuru, Geoffrey Kiryabwire, Elizabeth Musoke, and Cheborion Barishaki declared Section 8 of the POMA is unconstitutional, and all acts done under the law null and void. Justice Stephen Musota was the lone dissenting voice.
The judgment comes more than six years since civil society organizations led by Human Rights Network Uganda (HURINET), Development Network of Indigenous Voluntary Associations (DENIVA), and the Uganda Association of Female Lawyers (FIDA) plus Butambala MP Muhammad Muwanga Kivumbi and former Anglican assistant Bishop of Kampala, Dr. Zac Niringiye challenged the enactment of the law.
The law was controversially passed by Parliament in August 2013 amid protests by opposition lawmakers who like other human rights activists criticized it as intended to curtail the activities of opposition politicians.
True to their fears, the police have been using the law to ruthlessly break up opposition meetings and processions after declaring them illegal.
This usually happens after the police refuse to allow the meetings on grounds that the planned meetings would disrupt the normal flow of trade.
In the lead judgment written by Justice Kenneth Kakuru, the court indicated that government failed to show evidence that such activities can stifle trade.
“No evidence whatsoever has been provided to show let alone prove that public gatherings stifle economic growth or disrupt business beyond what is justifiable in a free and democratic society,” Justice Kakuru ruled.
The court also cited recent processions by government agencies including security organs to create public awareness on various campaigns.
“In the recent past, His Excellency the President led a huge demonstration across the capital highlighting the evils of corruption in public institutions. All the activities in the capital went to a standstill but it was a welcome measure,” Kakuru said, further citing other processions like those preceding the Martyrs day celebrations, the Kampala city carnival among others that attract huge crowds but have never resulted into violence nor disrupted business, commerce or public order.
“It is my finding that the impugned legislation in the absence of clear, detailed regulations that meet the constitutional yardstick set out in the constitution and expounded upon in this judgment sets limitations that are far beyond what is demonstrably justifiable in a free and democratic society and as such, it is void,” Kakuru ruled.
The law was drafted in 2009, four years after the Butambala MP successfully moved the court in 2005 to delete Section 32 (e) of the Police Act that gave the Inspector General of the Police powers to permit or prohibit meetings.
“The ruling has indicted Parliament because the legislature is prohibited from enacting laws whose intention is to alter judgments of court,” Muwanga Kivumbi said.
“Under Section 32(e) of the Police Act, the police had powers to prohibit of gatherings, but when it was declared unconstitutional, they drafted the POMA saying that they wanted to regulate the conduct of assemblies but in Section 8, they put a clause giving police powers to authorize meeting – similar powers as was in Section 32 (e) of the Police Act,” the Butambala lawmaker said.
Such powers have once again been taken away by the Constitutional Court implying that organizers of meetings will no longer have to seek permission from the police.