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 democratic 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 need 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.

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 assemblies, 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.”

Summary of the Facts / Issues

The Petition challenges Section 8 of the POMA for being unconstitutional. The said section provided for powers of authorised police officers to stop, prevent or disperse public meetings where the officer considers it ‘necessary in the circumstances’. The section further made it a criminal offence (disobedience of lawful orders) to disobey the orders to stop, prevent, or disperse once issued by an authorised police officer. The Petitioners contended that the provisions of Section 8 of the POMA have a similar effect to Section 32(2) of the Police Act, which was nullified in the Muwanga Kivumbi v Attorney General case.

Jurisprudence Direction

The judgment represents a landmark jurisprudential development concerning the constitutional validity of the POMA and the powers of the police to stop, prevent or disperse peaceful assemblies. The salient points of the judgment are as follows:

1. Constitutional Validity of Section 8 of POMA
   The Court declared Section 8 of POMA unconstitutional, holding that it conferred excessive and unjustifiable powers on police officers to prevent and disperse public assemblies. The provision was found to infringe upon the constitutional right to freedom of assembly by lacking necessary and proportionate limitations.
2. Doctrine of Separation of Powers
   The Court reaffirmed the inviolability of the separation of powers enshrined under Article 92 of the Constitution. It held that Parliament’s enactment of Section 8 of POMA, which sought to override a prior judicial determination, was ultra vires and constituted a breach of constitutional order. The judgment underscores that Parliament cannot legislate so as to nullify or undermine judicial decisions.
3. Protection of Freedom of Assembly
   The Court emphasized that any statutory provision granting police officers unfettered discretion to prohibit public gatherings is incompatible with democratic principles and constitutional guarantees. Section 8 was characterized as prohibitory rather than regulatory, thereby unjustifiably restricting the fundamental right to assemble peacefully.
4. Judicial Precedent and Impact
   The judgment significantly influences Uganda’s constitutional jurisprudence. It affirms the supremacy of the Constitution and the judiciary’s role in safeguarding human rights against legislative encroachments.

The dissenting opinion by Justice Musota, which upheld Section 8 as a permissible limitation on the right to assemble, reflects the nuanced and contested nature of balancing public order and fundamental freedoms. Nonetheless, the majority’s decision establishes a critical le