POMA: Uganda court annuls public order law

On March 26, 2020, Uganda’s Constitutional Court annulled the repressive Public Order Management Act, 2013 (POMA) and declared all acts done under the law null and void.

In a 4 – 1 decision, the court ruled that the entire law was inconsistent with the 1995 Constitution of the Republic of Uganda. The court, however, struck down section 8 of the law for having the unconstitutional effect thereby rendering the entire law impotent.

In the lead judgment, Hon. Justice Cheborion Barishaki, JA/JCC ruled that the provisions of the POMA do not pass the test set out under Article 43(2)(c) of the 1995 Constitution which requires that any limitation of rights and freedoms must be acceptable and demonstrably justifiable in a free and democractic society.

“It is only in undemocratic and authoritarian regimes that peaceful protests and public gatherings of a political nature are not tolerated.”

In relation to police powers, Justice Barishaki made three important pronouncements. First, he wholly rejected the notion that the police have supernatural powers to determine that a particular public gathering or protest should not be allowed because it will result in breach of peace. Secondly, he dismissed the requirement for permission or clearance from the police provided the protest or public gathering is peaceful. Thirdly, he noted that all the police needs to do is to deploy its personnel to supervise the public gathering or protest and guard against the same becoming violent.

"The police have absolutely no authority to stop the holding of public gatherings on grounds of alleged possible breach of peace if such gatherings are allowed to proceed. The police’s duty is to regulate the holding of public gatherings and to ensure there is no breach of peace… The attention of the police must be directed at the individuals causing the breach of peace.”

This clarification had been issued previously by the court. Hon. Justice Barishaki, JA/JCC expressed concern with the actions of the Executive and Legislative arms of government to re-introduce similar unconstitutional provisions in the POMA.

"It is a pity that their [Constitutional Court in Muwanga Kivumbi v AG] explanations in nullifying section 32 (2) of the Police Act were contemptuously ignored by Parliament and the Executive… It, therefore, defies logic as to why Parliament would rush to pass an Act of Parliament [POMA] containing provisions that are pari materia[same] with those that were declared unconstitutional.” Hon. Justice Barishaki. Click here for further quotes from the lead judgment.

In his ruling, Justice Kenneth Kakuru, JA/JCC found that the POMA contains irrational and vague provisions that make an ordinary person unable to contemplate the conduct it forbids. He also found that POMA has been used by police to criminalise membership of political opposition and other members of society conasidered by police as being undesirable elements of society.

"The police however, have not stopped any asemblies, processions or gatherings that are sanctioned by government or the Ruling Party. In this regard therefore, I find that the effect of this law (POMA) is to stifle political dissent," Click here to view further key quotes from Hon. Justice Kakuru’s judgment.

INTERPRETING THE JUDGMENT: WHAT DOES IT MEAN?

Since the reading of the judgment nullifying the POMA, there have been various (mis)interpretations on social media and other places. Newspapers and TV reporting have also missed the import of the judgement.

Many of these appear to be based on the reading of the conclusions of the lead judgment other than an understanding of the judgment in its entirety. 

Let us try and break it down in simple terms the findings of the court. But before we do that, it is important to note that the judgment was not unanimous. 

Justice Stephen Musota wrote a dissenting opinion in which he found that section 8 of the Act is constitutional. His other four colleagues disagreed and struck downthe law. 

In her ruling, Justice Elizabeth Musoke wrote, I quote, 

"I agree with the analysis, findings and conclusion reached in the draft judgment of Hon.Justice Cheborion, JA's draft (sic). As a corollary, I am unable to agree with the conclusions reached in the draft judgment of Hon. Justice Musota, JA..."

Justice Elizabeth Musoke summed up the impact of the decision when she wrote, I quote:

"...I would find no hesitation in granting the petitioners thedeclarations they seek that sections 4(1), 5(1), 5(2) (b), 5(2)(c), 6(1), 6(3), and 7 (2), 8, 9, 10, 12 and 13 of the POMA are inconsistent with and/or in contravention of Articles 2(2), 8A, 29(1) (a), (d) & (e), 30, 38(2) of the 1995 Constitution. The impunge sections are therefore null and void."

The Learned Lady Justice concluded thus;

"I am also alive to the fact that the said impugnedprovisions form the core of the POMA, and give it the unconstitutional effect referred to earlier (sic). Therefore, I would order for the Public Order Management Act, 2013 to bestruck out for having an unconstitutional effect."

In continuing the effect principle, Justice Kakuru summed it up when he concluded, 'All acts done under that law are hereby declared null and void.’ 

"It is therefore clear that the total sum of the judgment is that POMA is struck down in its entirety as being unconstitutional and of no legal effect. It also means that all acts such as arrestsand prosecutions being undertaken or concluded from or under it are of no legal effect,” Nicholas Opiyo, Executive Director of Chapter Four Uganda said.

The decision will therefore impact on prosecutions that are ongoing under the law.

“There could be several prosecutions taking place around the country of certain individuals under the Public Order Management Act. I would advise the lawyers representing these people to take a keen look at this judgment because it could have an impact.” Counsel for the Petitioners, Advocate Onyango Owor said. 

The second reason for the conclusionis in the interpretation of the lead judgment of Justice Cheborion Barishaki. It is this that has caused misinterpretation with others arguing that it is only section 8 that is nullified. 

"To understand it, one has to have a good understanding of POMA. The whole is an administrative regime for public assembly vesting powers in the Inspector General of Police–an attempt at disguising permission in the form of regulation, a thing the court saw through,” Nicholas said.

In effect, the fulcrum on which the law rested is in section 8. By narrowing the issues to only section 8 in the main written submission, Counsel Onyango Owor made the work of the court easy. 

"Once you kick the leg of the stool, the stool can not stand. In sum, once section 8 is nullified, the whole law crumbles," Nicholas further observed.

The whole of the Public Order Management Act is therefore nullified by the ruling of the majority justices of the court.

“What this means is that the police no longer have power to stop public gatherings, to disperse people under the Public Order Management Act,” Counsel Onyango Owor noted.

We call on the Executive and Parliament to respect the decision of the court and start a process of enacting a progressive public order law that is consistent with the 1995 Constitution and the explanations provided in this judgment. Chapter Four Uganda avails itself to support the process.